ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 30/16

Reference for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 27 October 2010 — Finanzamt Hildesheim v BLC Baumarkt GmbH & Co. KG

(Case C-511/10)

()

2011/C 30/25

Language of the case: German

Referring court

Bundesfinanzhof

Parties to the main proceedings

Appellant: Finanzamt Hildesheim

Respondent: BLC Baumarkt GmbH & Co. KG

Question referred

Is the third subparagraph of Article 17(5) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes (1) to be interpreted as authorising the Member States to prescribe primarily an apportionment criterion other than the transaction formula for apportioning the input tax on the construction of a mixed-use building?

(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).
EN Official Journal of the European Union C 38/7

Action brought on 29 November 2010 — European Commission v Portuguese Republic

(Case C-557/10)

2011/C 38/08

Language of the case: Portuguese

Parties

Applicant: European Commission (represented by: H. Støvlbæk and M. França, Agents)

Defendant: Portuguese Republic

Form of order sought

— Declare that, with regard to transposition of the first railway package, the Portuguese Republic has failed to fulfil its obligations under Article 5(3) of Council Directive 91/440/EEC (1) of 29 July 1991 on the development of the Community's railways (as amended by Directive 2001/12/EC) (2), Article 7(3) of Directive 91/440/EEC and Article 6(1) of Directive 2001/14/EC (3) 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,

— order the Portuguese Republic to pay the costs.

Pleas in law and main arguments

Management independence

Article 5(3) of Directive 91/440 contains a list of decisions that railway undertakings must be able to take without State interference. These include decisions relating to staff, assets and own procurement. These decisions must be taken in the context of the general policy guidelines determined by the State. However, in Portugal, with regard to the public undertaking CP, the State not only lays down general strategic guidelines for the acquisition and disposal of holdings in other companies, but also requires individual decisions to acquire or dispose of holdings in the capital of companies to be subject to the approval of the government. For these reasons, the Commission considers that Portugal has failed to fulfil its obligations under Article 5(3) of Directive 91/440 (as amended).

Tariffs for access to railway infrastructure

Under Articles 7(3) of Directive 91/440 (as amended) and 6(1) of Directive 2001/14, Member States are to lay down conditions to ensure that the accounts of the railway infrastructure manager are balanced. In Portugal, however, income from infrastructure charges, State funding and other income from commercial activities is insufficient to balance the accounts of the infrastructure manager, the public undertaking REFER E.P. For these reasons, the Commission considers that Portugal has failed to fulfil its obligations under Article 7(3) of Directive 91/440 (as amended) and 6(1) of Directive 2001/14.

(1) OJ L 1991 237, p. 25

(2) OJ L 2001 75, p. 1

(3) OJ 2001 L 75, p. 29
—

declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2008/68/EC of the European Parliament and of the Council of 24 September 2008 concerning the inland transport of dangerous goods (1), or in any event by failing to communicate them to the Commission, Ireland has failed to fulfil its obligations under Article 10 of that Directive;
EN Official Journal of the European Union C 72/7

Action brought on 10 December 2010 — European Commission v Kingdom of Belgium

(Case C-577/10)

2011/C 72/10

Language of the case: French

Parties

Applicant: European Commission (represented by: E. Traversa and C. Vrignon, acting as Agents)

Defendant: Kingdom of Belgium

Form of order sought

— declare that by adopting Articles 137(8), third indent of 138, 153 and 157(3) of Framework Law (I) of 27 December 2006 (1), in the version in force since 1 April 2007, the Kingdom of Belgium has failed to fulfil its obligations under Article 56 of the Treaty on the Functioning of the European Union;

— order the Kingdom of Belgium to pay the costs.

Pleas in law and main arguments

By this action, the Commission claims that the national legislation which imposes a prior notification requirement on independent service providers established in other Member States (the ‘Limosa’ declaration), who wish to provide services in Belgium on a temporary basis, constitutes a restriction on the freedom to provide services.

The Commission points out, in the first place, that the provisions at issue constitute a discriminatory restriction insofar as, firstly, they impose non-negligible and deterrent additional administrative formalities on the independent service providers at issue and, secondly, they establish a monitoring system that applies only to providers established in another Member State, without any objective reasons to justify that difference in treatment.

In the second place, the applicant asserts that that restriction on the freedom to provide services, even if it is not discriminatory, is not justified by objectives in relation to the public interest, the maintenance of the financial balance of the social security system, the prevention of fraud or the protection of workers.

(1) Moniteur Belge, 28 December 2006, p. 75178.
1.

Is Article 80(1)(c) 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 where there are supplies between connected persons, in so far as the consideration is higher than the open market value, the taxable amount is the open market value of the transaction only if the supplier does not qualify for the full right to deduct the VAT chargeable on the purchase or production of the goods which are supplied?
1.

Where a decision of a foreign court is accompanied by the certificate provided for in Article 54 of Regulation No 44/2001 (1), but the defendant nevertheless objects on the ground that he was not served with notice of the action brought in the Member State of origin, is a court in the Member State where enforcement is sought competent, when considering a ground for withholding recognition provided for in Article 34(2) of Regulation No 44/2001, to examine for itself the conformity with the evidence of the information contained in the certificate? Is such wide jurisdiction on the part of a court in the Member State in which enforcement is sought compatible with the principle of mutual trust in the administration of justice set out in recitals 16 and 17 to Regulation No 44/2001?
EN Official Journal of the European Union C 103/13

Appeal brought on 28 December 2010 by Kalliope Agapiou Joséphidès against the judgment delivered by the General Court (Seventh Chamber) on 21 October 2010 in Case T-439/08 Agapiou Joséphidès v Commission and EACEA

(Case C-626/10P)

2011/C 103/22

Language of the case: French

Parties

Appellant: Kalliope Agapiou Joséphidès (represented by: C. Joséphidès and H. Joséphidès, avocats)

Other parties to the proceedings: European Commission and Education, Audiovisual and Culture Executive Agency (EACEA)

Form of order sought

— Set aside the judgment of the General Court delivered on 21 October 2010 in Case T-439/08;

— Annul the decision of the Education, Audiovisual and Culture Executive Agency (EACEA) of 1 August 2008 refusing to grant the appellant access to certain documents in File No 07/0122 relating to the award of a Jean Monnet Centre of Excellence to the University of Cyprus;

— Annul Commission Decision C(2007) 3749 of 8 August 2008 relating to an individual decision to award a subsidy within the framework of the Lifelong Learning Programme, Jean Monnet sub-programme;

— Order the respondents to pay the costs of both sets of proceedings.

Pleas in law and main arguments

The appellant relies on a number of grounds in support of her appeal.

Kalliope Agapiou Joséphidès submits that the General Court infringed her personal general right of access to documents concerning her, the principle of transparency contained in the second paragraph of Article 1 and Article 6 TFEU, Article 255 EC and the Charter of Fundamental Rights of the European Union (Articles 8, 41(2)(b), 42 and 52(6)). The General Court thus committed a procedural error in disregarding the references provided by the appellant at the hearing to the Charter of Fundamental Rights and in disregarding the opinion of the Ombudsman for the Republic of Cyprus of 3 June 2009 concerning the refusal of the University of Cyprus to grant access to the same documents at issue as those held by the respondents.

The appellant also claims that the General Court erred in law in deciding, first, that the Education, Audiovisual and Culture Executive Agency (EACEA) was competent to process the confirmatory request for access to documents and, second, to reject the appellant’s plea that the decision of the management committee of the EACEA was unlawful.

Moreover, the appellant alleges infringement of a number of provisions of Regulation (EC) No 1049/2001, (1) which the General Court interpreted too restrictively and in breach of the principles established by case-law.

The appellant also relies on a plea alleging infringement of the principles of good faith, consistency and sound administration and of the duty to state reasons.

Lastly, the appellant submits that the General Court erred in law in failing to annul Commission Decision C(2007) 3749 of 8 August 2008.

(1) Regulation of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43).
EN Official Journal of the European Union C 89/5

Reference for a preliminary ruling from the Naczelny Sąd Administracyjny (Polish Republic) lodged on 14 December 2010 — Minister Finansów v Kraft Foods Polska S.A.

(Case C-588/10)

2011/C 89/10

Language of the case: Polish

Referring court

Naczelny Sąd Administracyjny

Parties to the main proceedings

Applicant: Minister Finansów

Defendant: Kraft Foods Polska SA

Question referred

In view of the fact that Article 90(1) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (1) provides that where the price is reduced after the supply takes place, the taxable amount is to be reduced accordingly under conditions which are to be determined by the Member States, does the concept of these conditions cover a condition such as that provided for in Article 29(4a) of the Ustawa o podatku od towarów i usług (Law on turnover tax) of 11 March 2004 (Dziennik Ustaw No 54, item 535, as amended), which makes the right to reduce the taxable amount in relation to the amount set out in an invoice contingent on holding, before the expiry of the time limit for submitting a tax declaration for the accounting period in which the purchaser of the product or service received a correcting invoice, acknowledgement of receipt of the correcting invoice by the purchaser of the product or service in respect of which the invoice was issued, and does it infringe the principle of VAT neutrality and proportionality?

(1) OJ 2006 L 347, p. 1.
2.

Infringement of Articles 20(2)(d) of the Treaty on the Functioning of the European Union (TFEU) (formerly Article 17 EC), Article 24 TFEU (formerly Article 21 EC), Article 227 TFEU (formerly Article 194 EC), in conjunction with Article 58 of the Statue of the Court of Justice. That infringement relates to the petition which Mr Victoria Sánchez sent to the European Parliament in 2008 in which it drew that institution's attention to the risks incurred by Spanish citizens who dare to denounce the political corruption and tax fraud taking place in Spain. Together with the petition sent to the Parliament he submitted a contract signed by important Spanish personalities — including a named lawyer who works for the largest law firm in Spain and Portugal — which recounted how all of those persons were defrauding the State Treasury and Spanish citizens by means of fictitious undertakings opaque to the Spanish State. The petition was shelved without being granted any attention and no Spanish MEP responded to the subsequent requests for support made by the appellant — in the form of 10 emails — in which he requested the cooperation of his representatives to ensure his physical integrity in the light of the threats which he had received.
If the first question is answered in the negative:

For the purpose of determining whether there was a delay, within the terms of Article 6(1) of Regulation No 261/2004, in the case of a flight consisting of several stages, should reference be made to the individual stages or to the distance to the final destination?
1.

For the purposes of applying Article 1(1) of Directive 2003/6/EC (1) and Article 1(1) of Directive 2003/124/EC, (2) is account to be taken, in the case of a protracted process intended, over the course of a number of intermediate steps, to bring about a particular circumstance or to generate a particular event, only of whether that future circumstance or future event is to be regarded as precise information within the meaning of those provisions of the directive, meaning that it must be examined whether that future circumstance or future event may reasonably be expected to occur, or, in the case of a protracted process of this kind, can intermediate steps which already exist or have already occurred and which are connected with bringing about the future circumstance or event also constitute precise information within the meaning of the aforementioned provisions of the directive?
2.

If Question 1 is to be answered in the affirmative: (a) Is the core area of religious freedom limited to the profession and practice of faith in the areas of the home and neighbourhood, or can there also be an act of persecution, within the meaning of Article 9(1)(a) of Directive 2004/83/EC, in cases where, in the country of origin, the practice of faith in public gives rise to a risk to body, life or physical freedom and the applicant accordingly abstains from such practice? (b) If the core area of religious freedom can also comprise certain religious practices in public: Does it suffice in that case, in order for there to be a severe violation of religious freedom, that the applicant feels that such practice of his faith is indispensable in order for him to preserve his religious identity, or is it further necessary that the religious community to which the applicant belongs should regard that religious practice as constituting a central part of its doctrine, or can further restrictions arise as a result of other circumstances, such as the general conditions in the country of origin?
EN Official Journal of the European Union C 130/11

Appeal brought on 16 February 2011 by DTL Corporación, S.L. against the judgment of the General Court (Fourth Chamber) delivered on 15 December 2010 in Case T-188/10, DTL Corporación S.L. v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Case C-67/11 P)

2011/C 130/20

Language of the case: Spanish

Parties

Appellant: DTL Corporación, SL (represented by: A. Zuazo Araluza, abogado)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) and Gestión de Recursos y Soluciones Empresariales, S.L.

Form of order sought

Annulment in its entirety of the judgment of the General Court (Fourth Chamber) of 15 December 2010 in Case T-188/10.

Grant of the following forms of order sought at first instance:

1. annulment of the decision of the Second Board of Appeal of OHIM of 17 February 2010 in Case R 767/2009-2;

2. replacement of that decision by another rejecting the opposition brought by Gestión de Recursos y Soluciones Empresariales, S.L. against the Community trade figurative mark No 5153325 ‘SOLARIA’, permitting that Community trade mark to be registered for all the services applied for in Classes 37 and 42;

3. order OHIM and the other parties to the proceedings which oppose this action to pay the costs thereof.

Pleas in law and main arguments

1. Breach of procedure before the General Court which prejudices the interests of the applicant: the application to stay proceedings under Article 77(c) and (d) of the Rules of Procedure of the General Court was totally ignored (Article 58 of the Statute of the Court of Justice of the European Union).

2. Infringement of the law of the European Union by the General Court: the judgment infringes Article 8(1)(b) of Council Regulation (EC) No 40/94 (1) — now Council Regulation (EC) No 207/2009 (2) — on the Community trade mark, by expressly stating: (a) that the word element of the Community trade mark the subject of the dispute is the dominant feature of the mark; (b) that that word element is not the dominant feature of the mark, which contradiction decisively influences the assessment of the likelihood of confusion (Article 58 of the Statute of the Court of Justice of the European Union).

(1) Regulation of 20 December 1993, on the Community trade mark (OJ 1994 L 11, p. 1)

(2) Regulation of 24 March 2009 (OJ 2009 L 78, p. 1)
3.

Is the class of other family members referred to in Article 3(2) and Article 10(2) of Directive 2004/38/EC limited to those who have resided in the same country as the Union national and his or her spouse, before the Union national came to the host state?
EN Official Journal of the European Union C 145/17

Reference for a preliminary ruling from the Tribunale di Santa Maria Capua Vetere (Italy) lodged on 7 March 2011 — Criminal proceedings against Yeboah Kwadwo

(Case C-120/11)

2011/C 145/23

Language of the case: Italian

Referring court

Tribunale di Santa Maria Capua Vetere

Party to the main proceedings

Yeboah Kwadwo

Question referred

In the light of the principles of sincere cooperation, the effectiveness of directives and the proportionality and effectiveness of coercive measures for the return of illegally staying foreign nationals, do Articles 2, 15 and 16 of Directive 2008/115/EC (1) preclude an illegally staying foreign national who has simply failed to comply with the deportation order and the removal order issued by the administrative authorities from incurring criminal liability and being sentenced to a term of imprisonment of up to four years if he fails to comply with the first removal order and up to five years if he fails to comply with subsequent orders issued by the Questore?

(1) OJ 2008 L 348, p. 98.
—

that car has been used by that resident in the same way since the transfer of residence as before the transfer of residence, that is to say, for private purposes and also for travelling to his place of work in the Member State in which he previously resided?
1.

Is Article 49 TFEU, which deals with the right of establishment under EU law, to be interpreted to mean that it precludes application of the provisions of Finland’s Law on Medicines with respect to the pharmacies operating licence scheme, for the reason that conditions set for Helsinki University Pharmacy to set up branch pharmacies differ from the conditions set for private pharmacies as follows: (a) By a licence granted by Finnish Medicines Agency (‘FIMEA’) on the basis of Paragraph 52(1) of the Law on Medicines, a private branch pharmacy may be set up in an area which (because of the sparseness of its population) cannot be regarded as having adequate operational prerequisites for an independent pharmacy, but where (for the availability of medicines) a pharmacy business is required; and a private pharmacist may, on the basis of a separate licence granted for each branch pharmacy, operate a maximum of three branch pharmacies. On the other hand, a branch pharmacy of Helsinki University Pharmacy may be set up by a licence granted in each case by FIMEA on the basis of Paragraph 52(3) of the Law on Medicines, and discretion in the granting of such a licence is not limited by the provisions of the Law on Medicines or by other national regulations in any way other than that Helsinki University may have a maximum of 16 branch pharmacies. (b) When determining the place of establishment of a private branch pharmacy, FIMEA must take account of the location of the pharmacy. There is no corresponding regulation regarding the places of location of Helsinki University Pharmacy branch pharmacies, and these branch pharmacies are located in various parts of Finland.
a)

Procedural defects on grounds of failure to state adequate reasons in relation to: — the teleological interpretation of Council Regulation (EC) No 1177/2002 of 27 June 2002 concerning a temporary defensive mechanism to shipbuilding (‘the TDM Regulation’) (1) in order to identify the objectives pursued by the Council for the protection of the interests of those Community shipyards affected by the unfair conditions of competition applied by Korean shipyards; — the relationship (order of precedence of legislative acts) between the TDM Regulation of the Council and Commission Regulation (EC) No 794/2004 of 21 April 2004 implementing Council Regulation (EC) No 659/1999 laying down detailed rules for the application of Article 88 of the EC Treaty; (2) — reference to the principle of subsidiarity in order to determine the rules governing the time-limits for notifications of aid to the Commission on the part of the Member States.
1.

Are the designation rules in Title II of Regulation (EEC) No 1408/71 (1) applicable in a case such as the present, where an employed person with Netherlands nationality residing in Spain is employed as a seafarer by an employer established in the Netherlands, and carries out his work on board dredgers which navigate outside the territory of the Community under the Netherlands flag, with the result that the legislation of the Netherlands is designated as the legislation applicable, so that consequently Netherlands national insurance contributions may be levied, whereas judging solely on the basis of the national legislation of the Netherlands he is not affiliated to the Netherlands social security scheme as a result of the fact that he does not reside in the Netherlands?