ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 78/6

Appeal brought on 12 July 2016 by BSH Hausgeräte GmbH, anciennement BSH Bosch und Siemens Hausgeräte GmbH against the judgment of the General Court (Ninth Chamber) delivered on 12 May 2016 in Case T-749/14: Chung-Yuan Chang v EUIPO — BSH Hausgeräte (AROMA)

(Case C-389/16 P)

(2017/C 078/09)

Language of the case: English

Parties

Appellant: BSH Hausgeräte GmbH, anciennement BSH Bosch und Siemens Hausgeräte GmbH (represented by: S. Biagosch, Rechtsanwalt)

Other parties to the proceedings: European Union Intellectual Property Office (EUIPO), Peter Chung-Yuan Chang

By order of 15 November 2016 the Court of Justice (Seventh Chamber) held that the appeal was inadmissible.
EN Official Journal of the European Union C 70/8

Appeal brought on 11 August 2016 (fax of 4 August) by U-R LAB against the judgment of the General Court (Fifth Chamber) delivered on 25 May 2016 in Joined Cases T-422/15 and T-423/15 U-R LAB v European Union Intellectual Property Office

(Case C-450/16 P)

(2017/C 070/12)

Language of the case: French

Parties

Appellant: U-R LAB (represented by: A. Rudoni, avocat)

Other party to the proceedings: European Union Intellectual Property Office

By order of 25 November 2016 the Court (Tenth Chamber) dismissed the appeal.
3.

If the answer to Question 1 is in the negative, can the same-sex spouse, from a State which is not a Member State of the European Union, of a European Union citizen, to whom the citizen concerned is lawfully married under the law of a Member State other than the host Member State, be classified as ‘any other family member’ within the meaning of Article 3(2)(a) of Directive 2004/38/[EC] or ‘partner with whom the Union citizen has a durable relationship, duly attested’ within the meaning of Article 3(2)(b) of Directive 2004/38/[EC], with the corresponding obligation for the host Member State to facilitate entry and residence for him, even though the host State does not recognise marriages between members of the same sex or provide for an alternative form of legal recognition, such as registered partnerships?
EN Official Journal of the European Union C 95/3

Appeal brought on 22 July 2016 by Syndial SpA — Attività Diversificate against the order of the General Court (Sixth Chamber) delivered on 25 May 2016 in Case T-581/15, Syndial SpA v European Commission

(Case C-410/16 P)

(2017/C 095/06)

Language of the case: Italian

Parties

Appellant: Syndial SpA (represented by: L. Acquarone and S. Grassi, lawyers)

Other party to the proceedings: European Commission

By order of 9 February 2017, the Court of Justice (Ninth Chamber) dismissed the appeal and ordered Syndial SpA — Attività Diversificate to bear its own costs.
EN Official Journal of the European Union C 151/14

Request for a preliminary ruling from the Supremo Tribunal Administrativo (Portugal) lodged on 28 November 2016 — Giovanna Judith Kerr v Fazenda Pública

(Case C-615/16)

(2017/C 151/19)

Language of the case: Portuguese

Referring court

Supremo Tribunal Administrativo

Parties to the main proceedings

Applicant: Giovanna Judith Kerr

Defendant: Fazenda Pública

Question referred

[Must] the provision in Articles 135(1)(f) and 15(2) of Council Directive 2006/112/EC (1) … be interpreted as referring only to parties to contracts for the marketing of rights to use properties, or [may] it also be interpreted as referring equally to the activity carried on by the applicant, consisting in attracting clients and promoting services, so as to ensure that the business marketing those services completes the relevant sale, in accordance with instructions laid down in advance and limits on discounts and promotional gifts?

(1) 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 121/10

Request for a preliminary ruling from the Tribunale Amministrativo Regionale per il Lazio (Italy) lodged on 19 December 2016 — Finmeccanica SpA v Commissione Nazionale per le Società e la Borsa (Consob)

(Case C-656/16)

(2017/C 121/15)

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale per il Lazio

Parties to the main proceedings

Applicant: Finmeccanica SpA

Defendant: Commissione Nazionale per le Società e la Borsa (Consob)

Question referred

Is the proper application of the second subparagraph of Article 5(4) of Directive 2004/25/EC of the European Parliament and of the Council of 21 April 2004 on takeover bids, (1) in the light of the general principles laid down in Article 3(1) thereof, and the proper application of the general principles of European law relating to legal certainty, protection of legitimate expectations, proportionality, reasonableness, transparency and non-discrimination, prevented by a provision of national law such as Article 106(3)(d)(2) of Legislative Decree No 58 of 24 February 1998 (consolidating all provisions in the field of financial intermediation within the meaning of Articles 8 and 21 of Law No 52 of 6 February 1996), as subsequently amended, and Article 47 octies of the Decision of the Commissione Nazionale per le Società e la Borsa — Consob No 11971 of 14 May 1999 (Order implementing Legislative Decree No 58 of 24 February 1998 laying down rules applicable to offerees), as subsequently amended, in so far as those provisions authorise Consob to increase the takeover bid as referred to in Article 106 where the condition that ‘there has been collusion between the offeror or the persons acting in concert with it and one or more sellers’ is fulfilled, without identifying the specific actions which constitute such a situation, and thus without determining clearly the conditions and criteria under which Consob is authorised to adjust upwards the price of the takeover bid?

(1) OJ 2004 L 142, p. 12.
1.

Does Directive 219/112/EC, (1) and in particular Articles 63, 167, 168, 178, 179, 180, 182 and 219 thereof, and the principle of neutrality, preclude legislation which has the result that, in circumstances where the seller of the goods, liable for VAT, (i) was subject to a tax inspection which found that the VAT rate that he applied in a given situation was less than the due rate, (ii) paid to the State the additional tax and (iii) seeks to obtain the respective payment from the purchaser, also liable for VAT, the time period for the latter to be able to deduct that additional tax is calculated from the date of issue of the initial invoices and not from the date of issue or receipt of the rectifying documents?
EN Official Journal of the European Union C 112/21

Request for a preliminary ruling from the Conseil d’État (France) lodged on 23 January 2017 — Sucrerie de Toury SA v Ministre de l’économie et des finances

(Case C-31/17)

(2017/C 112/30)

Language of the case: French

Referring court

Conseil d’État

Parties to the main proceedings

Appellant on a point of law: Sucrerie de Toury SA

Respondent in the appeal on a point of law: Ministre de l’économie et des finances

Question referred

Do energy products used for combined heat and electricity generation come exclusively within the scope of the optional power to exempt conferred by Article 15(1)(c) of Council Directive 2003/96/EC of 27 October 2003 (1) or do they also come, as regards the proportion of those products the consumption of which corresponds to the generation of electricity, within the scope of the obligation to exempt provided for by Article 14(1)(a) of that directive?

(1) Council Directive 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity (OJ 2003 L 283, p. 51).
4.

In proceedings in which the existence of a risk during breastfeeding giving entitlement to leave is at issue, when ‘facts from which it may be presumed that there has been direct or indirect discrimination’ have been established in accordance with Article 19(1) of Directive 2006/54/EC in conjunction with Article 5 of Directive 92/85/EEC, transposed into Spanish law by Article 26 of the Law on the Prevention of Occupational Risks, can a breastfeeding worker be required to demonstrate, in order to be granted leave in accordance with the domestic legislation transposing Article 5(2) and (3)of Directive 92/85/EEC, that the adjustment of her working conditions and/or working hours is not technically and/or objectively feasible, or cannot reasonably be required and that moving her to another job is not technically and/or objectively feasible or cannot reasonably be required or are these matters for the respondents (the employer and the mutual insurance company providing the social security benefit associated with the suspension of the contract of employment) to prove?
EN Official Journal of the European Union C 144/23

Request for a preliminary ruling from the Verwaltungsgericht Berlin (Germany) lodged on 3 February 2017 — INEOS Köln GmbH v Bundesrepublik Deutschland

(Case C-58/17)

(2017/C 144/29)

Language of the case: German

Referring court

Verwaltungsgericht Berlin

Parties to the main proceedings

Applicant: INEOS Köln GmbH

Defendant: Bundesrepublik Deutschland

Question referred

Must Commission Decision 2011/278/EU (1) of 27 April 2011 determining transitional Union-wide rules for harmonised free allocation of emission allowances pursuant to Article 10a of Directive 2003/87/EC of the European Parliament and of the Council be interpreted as meaning that the definition of ‘process emissions sub-installation’ in Article 3(h) of Decision 2011/278/EU covers only incompletely oxidised carbon in a gaseous state, or does it also include incompletely oxidised carbon in a liquid state?

(1) OJ 2011 L 130, p. 1.
EN Official Journal of the European Union C 144/25

Request for a preliminary ruling from the Corte suprema di cassazione (Italy) lodged on 6 February 2017 — Oftalma Hospital Srl v CIOV -Commissione Istituti Ospitalieri Valdesi, Regione Piemonte

(Case C-65/17)

(2017/C 144/33)

Language of the case: Italian

Referring court

Corte suprema di cassazione

Parties to the main proceedings

Appellant: Oftalma Hospital Srl

Respondent: CIOV -Commissione Istituti Ospitalieri Valdesi, Regione Piemonte

Questions referred

1. On a proper construction of Article 9 of Council Directive 92/50/EEC of 18 June 1992, (1) which provides that contracts which have as their object services listed in Annex I B are to be awarded in accordance with Article 14 and Article 16, do such contracts in any case remain subject to the principles of freedom of establishment and freedom to provide services, equal treatment and the prohibition of discrimination on grounds of nationality, transparency and non-discrimination, pursuant to Article 43[EC], Article 49[EC] and Article 86[EC]?

2. If the first question should be answered in the affirmative, must Article 27 of Directive 92/50/EEC, which provides that where a contract is awarded by negotiated procedure the number of candidates admitted to negotiate may not be less than three, provided that there is a sufficient number of suitable candidates, be interpreted as applying likewise to contracts having as their object services listed in Annex I B of the directive?

3. Does Article 27 of Directive 92/50/EEC, which provides that where a contract is awarded by negotiated procedure the number of candidates admitted to negotiate may not be less than three, provided that there is a sufficient number of suitable candidates, preclude the application of a national law that, for public contracts signed before Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 (2) relating to services listed in Annex I B of Directive 92/50/EEC was adopted, does not guarantee the opening up of public procurement to competition if the negotiated procedure is used?

(1) Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts (OJ 1992 L 209, p. 1).

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

Do Article 5 of Directive 2008/95/EC (1) and Article 9 of Council Regulation (EC) No 207/2009 (2) of 26 February 2009 on the Community trade mark (codified version) cover the right of the trade-mark proprietor to oppose the removal, by a third party, without the consent of the trade-mark proprietor, of all signs identical to the trade marks which had been applied to the goods (debranding), in the case where the goods concerned have never previously been traded within the European Economic Area, such as goods placed in a customs warehouse, and where the removal by the third party occurs with a view to importing or placing those goods on the market within the European Economic Area?
2.

Do Articles 3, in conjunction with [point 1(e) of the annex], 4(1), 6(1) and 7(1) of Directive 93/13 preclude a judicial interpretation that, when a term in a loan agreement that sets the rate of default interest is declared unfair, identifies, as the object of the review of unfairness, the fact that that rate exceeds the ordinary interest rate, on the grounds that it constitutes ‘disproportionately high compensation imposed on the consumer who has not performed his obligations’, and establishes as the consequence of the declaration of unfairness that that additional charge must cease to apply, so that only ordinary interest continues to accrue until the loan has been repaid?
1.

In the context of an action for damages arising from a road-traffic accident, must a finding of joint and several liability on appeal by a higher court, without recourse being had to the principle of the immediacy of evidence and without all the grounds of defence being available, be considered to have been made in a fair and equitable hearing, as provided for in Article 47 of the Charter of Fundamental Rights of the European Union?
EN Official Journal of the European Union C 161/15

Reference for a preliminary ruling from the High Court of Justice (England & Wales), Queen's Bench Division (Administrative Court) (United Kingdom) made on 24 March 2017 — Swedish Match AB v Secretary of State for Health

(Case C-151/17)

(2017/C 161/19)

Language of the case: English

Referring court

High Court of Justice (England & Wales), Queen's Bench Division (Administrative Court)

Parties to the main proceedings

Applicant: Swedish Match AB

Defendant: Secretary of State for Health

Questions referred

Are Articles 1(c) and 17 of Directive 2014/40/EU (1) invalid by reason of:

i. breach of the EU general principle of non-discrimination;

ii. breach of the EU general principle of proportionality;

iii. breach of Article 5(3) TEU and the EU principle of subsidiarity;

iv. breach of Article 296(2) of the Treaty of the Functioning of the European Union (‘TFEU’);

v. breach of Articles 34 and 35 TFEU; and

vi. breach of Articles 1, 7 and 35 of the EU Charter of Fundamental Rights.

(1) Directive 2014/40/EU of the European Parliament and of the Council of 3 April 2014 on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco and related products and repealing Directive 2001/37/EC (OJ 2014, L 127, p. 1).
2.

If the answer to question 1 is in the affirmative, is it relevant, for the purpose of limiting the application of the special arrangements, that the trader knows that the subsequent buyer intends to extract the precious metals or precious stones present in the used articles, or are the objective characteristics of the transaction (the quantity of goods, legal status of the counterparty to the transaction, etc.) relevant?
4)

The Court erred in law in relation to its reasoning regarding the fourth part of the first plea in law set out in paragraphs 144-169 and in the portion of paragraph 177 that reads ‘Although it had been established that the contested trade mark had acquired distinctive character through use in Denmark, Germany, Spain, France, Italy, the Netherlands, Austria, Finland, Sweden and the United Kingdom’. The fourth part relates to the lack of proof of distinctive character acquired through use of the Mark throughout the European Union. The General Court was correct to find that Nestlé had not demonstrated that the Mark had acquired distinctive character throughout the whole of the EU and Mondelez does not wish to disturb that decision. However, Mondelez does not accept that Nestlé has at any time established acquired distinctiveness for the Goods in 10 Member States of the EU or at all. The General Court has erred in applying the wrong legal test in respect of each Member State in question as neither recognition, attribution nor association equate to perception by the relevant consumers of the Mark as denoting origin, as required by the test laid down by the CJEU in Case C-215/14.
EN Official Journal of the European Union C 213/16

Appeal brought on 16 February 2017 by Redpur GmbH against the judgment of the General Court (Seventh Chamber) delivered on 15 December 2016 in Case T-227/15, Redpur GmbH v European Union Intellectual Property Office (EUIPO)

(Case C-86/17 P)

(2017/C 213/19)

Language of the case: German

Parties

Appellant: Redpur GmbH (represented by: S. Schiller, Rechtsanwalt)

Other parties to the proceedings: European Union Intellectual Property Office (EUIPO), Redwell Manufaktur GmbH

Form of order sought

The appellant claims that the Court of Justice should:

— set aside the General Court’s judgment of 15 December 2016 in Case T-227/15 and reject the opposition;

— order EUIPO to pay the costs incurred by the present appellant in these proceedings;

— order Redwell Manufaktur GmbH to pay the costs incurred by the present appellant in the proceedings before the Opposition Division and the Board of Appeal of EUIPO.

Grounds of appeal and main arguments

Applicant for an EU trade mark: Appellant

EU trade mark concerned: Word mark ‘Redpur’ for goods in Class 11 — EU trade mark registration application No 10 934 305

Proprietor of the mark or sign cited in the opposition proceedings: Other party to the proceedings

Marks or signs cited in the opposition proceedings: EU word and figurative mark No 004769717 ‘redwell INFRAROT HEIZUNGEN’ for goods in Class 11; Austrian word mark with registration No 232549 ‘Redwell’ for goods in Class 11; International word mark (WIPO) with registration No 914971, ‘Redwell’ for goods in Class 11 and Company Names in Austria ‘REDWELL Manufaktur GmbH’ for heating systems and room heaters, in particular infrared heating and infrared heating systems

Decision of the Opposition Division: Opposition upheld

Decision of the Board of Appeal: Appeal dismissed

Plea in law: Infringement of Article 8(1)(b) of Regulation No 207/2009 (1)

(1) Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).
1.

In the light of Articles 167, 168 and 184 et seq. of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (1) and the principle of neutrality, does a municipality have the right to deduct (by effecting an adjustment) input tax on its investment expenditure in the case where: — in the initial period after production (acquisition), the capital goods were used for the purposes of a non-taxable area of activity (in connection with the municipality’s performance of the tasks of a public authority within its area of responsibility); and — the use to which the capital goods are put has changed and they will in future be used by the municipality also to carry out taxable transactions?
2.

If the determination made in Clauses I/1 and II/1 of the agreement does not correspond to the notion of plain, intelligible language and it is possible to examine whether the terms of those clauses are unfair, in the event that they are considered to be unfair, may the entire agreement be declared invalid, given that, in cases in which the subject matter of the agreement is not definite, the legal consequence under national law is the invalidity of the agreement in its entirety?
EN Official Journal of the European Union C 221/5

Request for a preliminary ruling from the Curtea de Apel Constanța (Romania) lodged on 29 March 2017 — Întreprinderea Individuală Dobre M. Marius v Ministerul Finanțelor Publice — Agenția Națională de Administrare Fiscală — Direcția Generală Regională a Finanțelor Publice Galați — Serviciul Soluționare Contestații, Agenția Națională de Administrare Fiscală — Direcția Generală Regională a Finanțelor Publice Galați — Administrația Județeană a Finanțelor Publice Constanța — Serviciul Inspecție Fiscală Persoane Fizice

(Case C-159/17)

(2017/C 221/06)

Language of the case: Romanian

Referring court

Curtea de Apel Constanța

Parties to the main proceedings

Appellant: Întreprinderea Individuală Dobre M. Marius

Respondents: Ministerul Finanțelor Publice — Agenția Națională de Administrare Fiscală — Direcția Generală Regională a Finanțelor Publice Galați — Serviciul Soluționare Contestații, Agenția Națională de Administrare Fiscală — Direcția Generală Regională a Finanțelor Publice Galați — Administrația Județeană a Finanțelor Publice Constanța — Serviciul Inspecție Fiscală Persoane Fizice

Question referred

Must Articles 167, 168, 169, 179, 213(1), 214(1)(a) and 273 of Directive 2006/112/EC (1) be interpreted as precluding national legislation which, in circumstances such as those of the main proceedings, requires a taxpayer, whose registration for VAT purposes has been revoked, to pay to the State the VAT collected during the period in which the VAT identification code was revoked, without, however, recognising his right to deduct the VAT relating to purchases made during that period?

(1) Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1).
2.

Having regard to the fact that Article 3(2) of Directive 2009/72 provides that PIS obligations are to be clearly defined, transparent, non-discriminatory and verifiable, and Article 3(6) of Directive 2009/72 provides that financial compensation to PIS persons is to be determined in a non-discriminatory and transparent way, it is necessary to clarify the following: 2.1. are the provisions of Article 3(2) and (6) of Directive 2009/72 to be interpreted as prohibiting the incentivisation of PIS providers from being restricted if they properly fulfil the obligations assumed by them that are related to PIS provision? 2.2. is an obligation laid down in national law to suspend the payment of financial compensation received by PIS providers irrespective of the activities for PIS provision carried out by the PIS provider and of the fulfilment of the obligations assumed by it, but linking the ground for restricting (suspending) the payment of PIS compensation to, and making it dependent on, the performance by a person connected with the PIS provider (a controlling interest in which is held by the same undertaking as that which has a controlling interest in the PIS provider) of actions and obligations when accounting for the PIS consumption monies calculated for that undertaking, to be regarded as discriminatory, unclear and restrictive of fair competition for the purposes of the provisions of Article 3(2) and (6) of Directive 2009/72? 2.3. is an obligation laid down in national law to suspend the payment of financial compensation received by PIS providers, while the PIS providers remain obliged to continue to fulfil in full their PIS provision obligations and related contractual obligations to undertakings purchasing electricity, to be regarded as discriminatory, unclear and restrictive of fair competition for the purpose of the provisions of Article 3(2) and (6) of Directive 2009/72?