ddrg/super_eurlex huggingface dataset:
2.

Does it follow from Article 31(1) and (3) of Directive 2004/38/EC (1) 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 that, where a Member State has provided in its national law for a procedure for examining an administrative act which limits the right under Article 4(1) of the Directive, the competent administrative authority is required, at the request of the addressee of the administrative act, to examine that measure and to assess its legality with reference also to the case-law of the Court of Justice of the European Union on the interpretation of relevant provisions of EU law governing the conditions and limitations applicable to the exercise of that right, so as to ensure that the limitation imposed on the right is not disproportionate at the time when the review decision is adopted, where the administrative act imposing the limitation is already final at that time?
1.

Do the provisions of the Europe Agreement and particularly of the EU-Bulgaria Association Council decisions apply to State aid that was granted prior to the accession of the Republic of Bulgaria to the European Union pursuant to the provisions of the Europe Agreement and, in particular, pursuant to Article 9(4) of Protocol 2 where an assessment of the incompatibility of State aid granted in that way takes place after the date of accession of the Republic of Bulgaria to the European Union? If the answer to this question is in the affirmative the following interpretation is required: (a) Is the second paragraph of Article 3 of the Additional Protocol to the Europe Agreement establishing an association between the European Communities and their Member States, of the one part, and the Republic of Bulgaria, of the other part, with regard to an extension of the period laid down in Article 9(4) of Protocol 2 to the Europe Agreement to be interpreted as meaning that only the European Commission may establish whether the restructuring programme and the plans have been fully implemented in accordance with Article 2 of the Additional Protocol and are in compliance with the requirements of Article 9(4) of Protocol 2 to the Europe Agreement? If the answer to this question is in the negative the following interpretation is required: (b) Is the third paragraph of Article 3 of the Additional Protocol to the Europe Agreement establishing an association between the European Communities and their Member States, of the one part, and the Republic of Bulgaria, of the other part, with regard to an extension of the period laid down in Article 9(4) of Protocol 2 to the Europe Agreement to be interpreted as meaning that the competent national authority of the Republic of Bulgaria has the right to adopt a decision on the recovery of State aid that does not comply with the requirements of Article 9(4) of Protocol 2 to the Europe Agreement? If the Court of Justice should answer this question in the negative an interpretation of the following question is requested:
EN Official Journal of the European Union C 252/19

Reference for a preliminary ruling from the Corte Suprema di Cassazione (Italy) lodged on 9 June 2011 — Ministero dell’Economia e delle Finanze and Agenzia delle Entrate v Elsacom N.V.

(Case C-294/11)

2011/C 252/35

Language of the case: Italian

Referring court

Corte Suprema di Cassazione

Parties to the main proceedings

Applicants: Ministero dell’Economia e delle Finanze and Agenzia delle Entrate

Defendant: Elsacom N.V.

Question referred

Is the period of six months from the end of the calendar year in which value added tax became chargeable, being the time allowed for taxable persons not established in the territory of the country to submit an application for refund of that tax — as laid down in the last sentence of the first subparagraph of Article 7(1) of Eighth Council Directive 79/1072/EEC (1) of 6 December 1979 — a mandatory time-limit, that is to say, a time-limit non-compliance with which results in forfeiture of the right to a refund?

(1) OJ 1979 L 331, p. 11.
3.

What is to be understood by the terms ‘modulation’ and ‘demodulation’ within the meaning of the Explanatory Notes to the Combined Nomenclature of the European Community for 2009 (Commission Regulation (EC) No 1031/2008 of 19 September 2008), which were published in the Official Journal of 30 May 2008 (OJ 2008 C 133, p. 1) (amendment in relation to subheadings 8528 90 00, 8528 71 13 and 8528 71 90), if they are used in relation to the classification of goods under TARIC code 8528711300?
2.

If so, what are the conditions under which the withholding tax at issue may be regarded as consistent with the principle of free movement of capital?
2.

Is a taxable person who has the seat of his economic activity in another Member State and whose activity consists inter alia of the manufacture and sale of hearing aids to be regarded, by virtue of carrying out research in audiology from a research division in Sweden, as having had a fixed establishment in Sweden from which business transactions have been effected where that person has acquired goods and services that were received and used at the research division in question in Sweden?
2.

If that question is answered in the negative, does the fact that a Member State has implemented that directive by means of legislation which declares the aforementioned requirements to be nevertheless applicable to such calves, give grounds, in the event of an infringement of those requirements in that Member State, for deeming a reduction or exclusion under Article 6 of Regulation (EC) No 1782/2003 to be necessary?
1.

Do Articles 3, 12 and 13 of Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (Authorisation Directive) (1), as they currently apply, permit Member States to charge operators holding individual rights to use mobile phone frequencies for a period of fifteen years, in the context of authorisations to install and operate on their territory mobile phone networks issued under the scheme instituted under the former legal framework, a one-off fee for the renewal of their individual rights to use frequencies the amount of which, relating to the number of frequencies and months to which the rights of use relate, is calculated on the basis of the former one-off grant fee that was associated with the issue of the aforementioned authorisations, when that one-off fee is additional to both an annual charge for making frequencies available (intended first and foremost to cover the costs of making frequencies available while at the same time also partially reflecting the value of frequencies, the purpose of the one-off fee and the annual charge being to encourage optimal use of the frequencies) and a charge covering the cost of managing the authorisation?
EN Official Journal of the European Union C 282/2

Reference for a preliminary ruling from the Oberlandesgericht Frankfurt am Main (Germany), lodged on 20 June 2011 — Chemische Fabrik Kreussler & Co. GmbH v John O. Butler GmbH

(Case C-308/11)

2011/C 282/02

Language of the case: German

Referring court

Oberlandesgericht Frankfurt am Main

Parties to the main proceedings

Appellant: Chemische Fabrik Kreussler & Co. GmbH

Respìondent: John O. Butler GmbH

Questions referred

1. For the purpose of defining the term ‘pharmacological action’ in Article 1(2)(b) of Directive 2001/83/EC, (1) as amended by Directive 2004/27/EC, (2) can recourse be had to the document compiled under the auspices of the European Commission to provide guidance in distinguishing between medicinal products and medical devices (the ‘Medical Devices: Guidance document’), which states that there must be an interaction between the molecules of the substance in question and a cellular constituent, usually referred to as a receptor, which either results in a direct response or blocks the response of another agent?

2. If the first question is answered in the affirmative: does the term ‘pharmacological action’ require that there should be an interaction between the molecules of the substance in question and cellular constituents of the user, or is it sufficient if there is an interaction between the substance in question and a cellular constituent which does not form part of the human body?

3. In the event that the first question is answered in the negative or that neither of the two definitions proposed in the second question is appropriate: which alternative definition should be used instead?

(1) Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use (OJ 2001 L 311, p. 67).

(2) Directive 2004/27/EC of the European Parliament and of the Council of 31 March 2004 amending Directive 2001/83/EC on the Community code relating to medicinal products for human use (OJ 2004 L 136, p. 34).
6.3.

In view of the legal objectives which the distribution undertaking emphasises it is pursuing, can the measure taken in the two urban districts be justified in a situation in which (a) the measure is taken because of the increasing incidence of unpaid bills in the two urban districts and the frequent offences committed by consumers which impair or threaten the safety, quality and continuous and secure operation of the electrical installations and the measure is taken across the board, irrespective of whether the individual consumer pays his bills for the distribution and supply of electricity and whether the individual consumer has been found to have committed any offence (manipulation of meter readings, illegal connection and/or extraction and/or consumption of electricity without payment, or any other interference with the network which impairs or threatens its safe, high-quality, continuous and secure operation); (b) provision is made in legislation and the General Conditions of the Contract on Distribution (‘Distribution Contract’) for liability for any similar offence in civil, administrative and criminal law; (c) the clause contained in Article 27(2) of the General Conditions of the Distribution Contract — whereby the distribution undertaking gives an assurance that, if explicitly requested by a consumer in writing, it will enable him to make a visual check of the meter readings — does not in fact enable the consumer to check the readings personally and regularly; (d) it is possible for an inspection meter to be installed in the consumer’s home at his explicit written request, although a fee is payable; (e) the measure is a distinctive and visible reference to the dishonesty of the consumer in one or other form in view of what the distribution undertaking refers to as the generally known reasons for the measure being taken; (f) other technical methods and means can be used to protect electricity meters against interference; (g) the legal representative of the distribution undertaking claims that a similar measure taken in a Roma district of another city was in fact unable to prevent interference; (h) it is not assumed that an electrical installation in one of these urban districts, a transformer station, will need to undergo measures similar to those taken to protect electricity meters?
2.

Whether, in assessing whether or not the State has complied with its obligations under Article 8, the national Court is entitled to take into account the State contributory pension which will be received by the Plaintiffs (receipt of which is not affected by a link with the occupational pension scheme) and to compare (a) the total of the State pension and the value of the pension the Plaintiffs will or are likely to actually receive from the relevant occupational pension scheme with (b) the total of the State contributory pension and the value of the accrued pension benefits of each of the Plaintiffs at the date of winding up of the scheme where the State pension was taken into account in designing the level of pension benefit claimed by the Plaintiffs?
3.

If the answer to the first question is in the negative, what criteria should the national court take into account when interpreting the concept of ‘normal retirement age’ at the time of transfer of a farm under Article 11 of Council Regulation (EC) No 1257/1999 of 17 May 1999 on support for rural development from the European Agricultural Guidance and Guarantee Fund (EAGGF) and amending and repealing certain Regulations?
EN Official Journal of the European Union C 319/9

Reference for a preliminary ruling from the Landgericht Köln (Germany) lodged on 5 August 2011 — Germanwings GmbH v Amend

(Case C-413/11)

2011/C 319/16

Language of the case: German

Referring court

Landgericht Köln

Parties to the main proceedings

Applicant: Germanwings GmbH

Defendant: Amend

Question referred

Is it compatible with the principle of the separation of powers in the European Union if, in order to remedy what would otherwise be unequal treatment, Regulation No 261/2004 (1) is interpreted as meaning that a passenger who is affected by a mere delay of more than three hours is entitled to compensation under Article 7 of the Regulation, although the Regulation provides for this only in the case of denied boarding or cancellation of the booked flight but, in the event of delay, restricts the passenger’s claims to assistance under Article 9 of the Regulation and, if the delay is for more than five hours, also assistance under Article 8(1)(a) of the Regulation?

(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 331/10

Reference for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 26 August 2011 — Ekkerhard Schauß v Transportes Aéreos Portugueses SA

(Case C-437/11)

2011/C 331/16

Language of the case: German

Referring court

Bundesgerichtshof

Parties to the main proceedings

Applicant: Ekkerhard Schauß

Defendant: Transportes Aéreos Portugueses SA

Question referred

Does a passenger have a right to compensation under Article 7 of Regulation (EC) 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 311/17

Reference for a preliminary ruling from the Oberlandesgericht Düsseldorf (Germany) lodged on 20 July 2011 — Piepenbrock Dienstleistungen GmbH & Co. KG v Kreis Düren

(Case C-386/11)

2011/C 311/27

Language of the case: German

Referring court

Oberlandesgericht Düsseldorf

Parties to the main proceedings

Applicant: Piepenbrock Dienstleistungen GmbH & Co. KG

Defendant: Kreis Düren

Other party to the proceedings: Stadt Düren

Question referred

Is a ‘public contract’ within the meaning of Article 1(2)(a) of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (1) to be understood as also meaning a contract between two local authorities whereby one of them assigns strictly limited competence to the other in return for the reimbursement of costs, in particular where the task assigned concerns only ancillary business, not official activities as such?

(1) OJ 2004 L 134, p. 114.
2.

Must the exception in Article 6(2) of Council Directive 2000/78/EC concerning the determination of age limits for admission to occupational social security schemes be interpreted as not precluding a Member State from maintaining a legal situation in which an employer can pay, as part of pay, age-graded pension contributions, implying for example that the employer pays a pension contribution of 6 % for employees under 35, 8 % for employees from 35 to 44 and 10 % for employees over 45, in so far as that does not bring about discrimination on grounds of sex?
2.

This reference to the Court of Justice of the European Union is made so that the concept of disproportion can be expanded upon with regard to: (a) the use of acceleration clauses in contracts planned to last for a considerable time — in this case 33 years — for events of default occurring within a very limited specific period; (b) the setting of default interest rates — in this case exceeding 18 % — which are not consistent with the criteria for determining default interest in other consumer contracts (consumer credit), which, in other types of consumer contracts, might be regarded as unfair, and which, nevertheless, in contracts relating to immovable property, are not subject to any clear legal limit, even where they are applied not only to the instalments that have already fallen due but also to the totality of those that have become due as a result of acceleration; (c) the unilateral establishment by the lender of mechanisms for the calculation and determination of variable interest — both ordinary and default interest — which are linked to the possibility of mortgage enforcement and do not allow a debtor who is subject to enforcement to object to the quantification of the debt in the enforcement proceedings themselves but require him to resort to declaratory proceedings in which a final decision will not be given before enforcement has been completed or, at least, the debtor will have lost the property mortgaged or charged by way of guarantee — a matter of great importance when the loan is sought for the purchase of a dwelling and enforcement gives rise to eviction from the property.
EN Official Journal of the European Union C 347/8

Reference for a preliminary ruling from the Finanzgericht Hamburg (Germany) lodged on 26 August 2011 — Lagura Vermögensverwaltungs GmbH v Hauptzollamt Hamburg-Hafen

(Case C-438/11)

2011/C 347/12

Language of the case: German

Referring court

Finanzgericht Hamburg

Parties to the main proceedings

Applicant: Lagura Vermögensverwaltungs GmbH

Defendant: Hauptzollamt Hamburg-Hafen

Question referred

In the circumstances of the main proceedings, in which the authority of the third country can no longer verify whether the certificate issued by it is based on a correct account of the facts, is the person liable for payment to be denied the protection of legitimate expectations provided for in the second and third subparagraphs of Article 220(2)(b) of the Community Customs Code (1) where the circumstances on account of which it is impossible to clarify whether the content of the certificate of origin is correct fall within the sphere of control of the exporter, or is the transfer of the burden of proof, in the context of the third subparagraph of Article 220(2)(b) of the Customs Code, from the customs authority to the person liable for payment subject only, or rather, to the condition that clarification is impossible because it is outside the control of the authority in the exporting country or caused by the negligence of the exporter alone?

(1) Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1) in the version as amended by Regulation (EC) No 2700/2000 of the European Parliament and of the Council of 16 November 2000 (OJ 2000 L 311, p. 17).
EN Official Journal of the European Union C 347/15

Appeal brought on 23 September 2011 by Mitsubishi Electric Corp. against the judgment of the General Court (Second Chamber) delivered on 12 July 2011 in Case T-133/07: Mitsubishi Electric Corp. v European Commission

(Case C-489/11 P)

2011/C 347/24

Language of the case: English

Parties

Appellant: Mitsubishi Electric Corp. (represented by: R. Denton, Solicitor, J. J Vyavaharkar, Solicitor, K. Haegeman, avocat)

Other party to the proceedings: European Commission

Form of order sought

The appellant claims that the Court should:

— Set aside the judgment insofar as it dismisses Melco's application before the General Court,

— Annul those articles of the decision which have not already been annulled by the judgment, to the extent that they apply to Melco and to TMT&D for the period for which Melco shares joint and several liability with Toshiba for the activities of TMT&D,

— In any event, order that the Commission pays its own costs and Melco's costs in connection with these proceedings and those before the General Court.

Pleas in law and main arguments

The appellant submits that the General Court has made significant legal errors in assessing the evidence regarding the existence of the alleged ‘common understanding’:

— The General Court distorts the information in relation to the existence of the ‘common understanding’.

— The General Court has failed to apply the correct standard for review of evidence and misapplied the case law principle that statements which run counter to the interests of the declarant must in principle be regarded as particularly reliable.

— The General Court has misapplied the case law on standard and weighting of evidence in concluding that Mr. M's statement is credible and of probative value.

— The General Court misapplies the law on corroboration to Fuji's reply to the Statement of Objections.

— The General Court has failed to consider the overall effect of the individual breaches by the Commission of Melco's rights of defence and right to a fair hearing.

— The General Court has breached Melco's rights of defence, in particular the presumption of innocence, by requiring Melco to prove a negative to show that it did not commit an infringement.

— The General Court has breached the presumption of innocence and misapplied legal principles by refusing to consider the alternative plausible explanation.

The appellant also submits that the General Court has made serious legal errors in assessing the purported duration of the alleged infringement:
EN Official Journal of the European Union C 355/8

Reference for a preliminary ruling from the Verwaltungsgerichtshof Baden-Württemberg (Germany) lodged on 6 September 2011 — L v M

(Case C-463/11)

2011/C 355/13

Language of the case: German

Referring court

Verwaltungsgerichtshof Baden-Württemberg

Parties to the main proceedings

Applicant: L

Defendant: M

Question referred

Does a Member State exceed the limits of its discretion under Article 3(4) and (5) of Directive 2001/42 (1) if, in respect of a municipality’s development plans which determine the use of small areas at local level and set the framework for future development consent of projects but do not fall within the scope of Article 3(2) of Directive 2001/42, it determines — having regard to the relevant criteria of Annex II to the directive — by specifying a particular type of development plan which is characterised by a threshold based on surface area and by a qualitative condition, that when drawing up such a development plan the procedural provisions on environmental assessment otherwise applicable to development plans are to be waived and also provides that an infringement of those procedural provisions which stems from the fact that the municipality has incorrectly assessed the qualitative condition is irrelevant for the legal validity of a development plan of that particular type?

(1) Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment (OJ 2001 L 197, p. 30).