ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 9/25

Appeal brought on 3 September 2012 by the Council of the European Union against the judgment of the General Court (Seventh Chamber) delivered on 14 June 2012 in Case T-396/09 Vereniging Milieudefensie, Stichting Stop Luchtverontreiniging Utrecht v Commission

(Case C-401/12 P)

2013/C 9/42

Language of the case: Dutch

Parties

Appellant: Council of the European Union (represented by: M. Moore and K. Michoel, Agents)

Other parties to the proceedings:

Vereniging Milieudefensie,

Stichting Stop Luchtverontreiniging Utrecht, European Commission,

Kingdom of the Netherlands,

European Parliament

Form of order sought

The Council claims that the Court should:

— set aside the judgment of 14 June 2012 in Case T-396/09;

— dismiss the action of the applicants at first instance in its entirety;

— order the applicants at first instance jointly and severally to pay the Council’s costs in the present case.

Pleas in law and main arguments

The Council takes the view that the judgment of the General Court in the abovementioned case is vitiated by two errors of law. The Council is of the view that the General Court did not correctly interpret and apply the ‘Nakajima’ (1) and ‘Fediol’ (2) case-law. Consequently, the Council is of the view that the General Court erred in finding that it could review the legality of Regulation (EC) No 1367/2006 (3) in the light of the Aarhus Convention (4) on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters.

Furthermore, the Council is of the view that the choice made by the legislature in Regulation No 1367/2006 is any event fully consistent with the Aarhus Convention. In this respect, the General Court’s interpretation of Article 9(3) of the Aarhus Convention is incorrect, in so far as the General Court disregards the discretion afforded to the contracting parties.

The Council therefore requests the Court of Justice to set aside the judgment of the General Court in Case T-396/09, and to give final judgment in the matter by dismissing the action of the applicants at first instance in its entirety.

(1) Case C-69/89 Nakajima v Council [1991] ECR I-2169.

(2) Case 70/87 Fediol v Commission [1989] ECR 1825.

(3) Regulation of the European Parliament and of the Council of 6 September 2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies (OJ 2006 L 264, p. 13).

(4) Aarhus Convention of 25 June 1998 on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, approved by Council Decision 2005/370/EC of 17 February 2005 (OJ 2005 L 124, p. 1).
2.

Is Article 4(8) of Regulation No 65/2011 to be interpreted as being incompatible with Article 7(2) of the Bulgarian Regulation No 29 of 11 August 2008, according to which financial aid is not to be granted to applicants/beneficiaries who are found to be functionally dependent and/or who have artificially created the conditions required for obtaining aid, with a view to obtaining an advantage contrary to the objectives of the measure?
EN Official Journal of the European Union C 389/3

Reference for a preliminary ruling from the Tribunal Administrativo e Fiscal do Porto (Portugal) lodged on 18 September 2012 — Portgás — Sociedade de Produção e Distribuição de Gás, SA v Ministério do Ambiente, do Ordenamento do Território e do Desenvolvimento Regional

(Case C-425/12)

2012/C 389/04

Language of the case: Portuguese

Referring court

Tribunal Administrativo e Fiscal do Porto

Parties to the main proceedings

Applicant: Portgás — Sociedade de Produção e Distribuição de Gás, SA

Defendant: Ministério do Ambiente, do Ordenamento do Território e do Desenvolvimento Regional

Question referred

May Articles 4(1) and 14(1)(c)(i) of Council Directive 93/38/EEC (1) of 14 June 1993 coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors, as amended by Directive 98/04/EC (2) of the European Parliament and of the Council of 16 February 1998, and the other provisions of those Directives and the general principles of Community law applicable, be interpreted as meaning that they create obligations for private individuals who are public service concession-holders (in particular an entity covered by Article 2(1)(b) of Directive 93/38/EEC), where that Directive has not been transposed into national law by the Portuguese State, so that failure to fulfil those obligations may be invoked against that private concession-holding entity by the Portuguese State by means of an act attributable to one of its Ministries?

(1) Council Directive 93/38/EEC of 14 June 1993 coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors (OJ 1993 L 199, p. 84).

(2) OJ 1998 L 101, p.1.
2.

… Can a member, having third-country nationality, of the family of a Union citizen who lives in the Member State of which he is a national but who, in the course of his work for an employer established in that same Member State, travels to and from another Member State derive, in circumstances such as those of the present case, a right of residence from Union law?
2.

(a) If the answer to Question 1 is in the affirmative, should the concept of ‘the total consideration of the offer’ used in Article 1(2)(h) of the Prospectus Directive then be interpreted as meaning that the sums deriving from an enforced sale of securities must be those reasonably to be expected, with due regard for the particular nature of an enforced sale, even if the sums reasonably to be expected are well below the real economic value? (b) If the answer to Question 1 is in the affirmative, but the answer to Question 2(a) is in the negative, how should ‘the total consideration of the offer’ referred to in Article 1(2)(h) of the Prospectus Directive be construed, particularly in the case of an enforced sale of securities?
EN Official Journal of the European Union C 26/22

Reference for a preliminary ruling from the Landesgericht Feldkirch (Austria), lodged on 24 October 2012 — Armin Maletic, Marianne Maletic v lastminute.com GmbH and TUI Österreich GmbH

(Case C-478/12)

2013/C 26/40

Language of the case: German

Referring court

Landesgericht Feldkirch

Parties to the main proceedings

Appellants: Armin Maletic, Marianne Maletic

Respondents: lastminute.com GmbH, TUI Österreich GmbH

Question referred

Is Article 16(1) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, (1) which confers jurisdiction on the courts for the place where the consumer is domiciled, to be interpreted as meaning that, in the case where the other party (here, a travel agent having its seat abroad) has recourse to a contracting partner (here, a travel operator having its seat in the home country), Article 16(1) of Regulation No 44/2001 is, for the purpose of proceedings brought against those two parties, also applicable to the contracting partner in the home country?

(1) OJ 2001 L 12, p. 1.
1.

Is Article 13B(d)(6) 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 — Common system of value added tax: uniform basis of assessment (1) to be interpreted as meaning that the term ‘special investment funds as defined by Member States’ includes pension funds such as those referred to in the main proceedings and having the following characteristics, where the Member State recognises the institutions presented in section 2 of the present order for reference as special investment funds: (a) the return to the employee (the pension customer) depends on the yield realised by the pension fund’s investments, (b) the employer is not required to make supplementary payments in order to secure a particular return for the pension customer, (c) the pension fund collectively invests the funds accumulated applying a risk-spreading principle, (d) the bulk of the payments into the pension fund is based on collective agreements between labour-market organisations representing the individual employees and employers, and not on the personal decision of the individual employee, (e) the individual employee may decide, on a personal basis, to make additional contributions to the pension fund, (f) self-employed traders, employers and directors may opt to pay pension contributions into the pension fund, (g) a predetermined portion of the pension savings collectively agreed for the employees is used to purchase a life annuity, (h) the pension customers bear the pension fund’s costs, (i) payments into the pension fund are deductible for the purposes of national income tax within certain quantitative limits, (j) payments into a personal pension plan, including a pension fund set up with a financial institution under which the contributions can be invested in a special investment fund, are deductible for the purposes of national income tax to the same extent as under point (i), (k) the counterpart to the entitlement to deduct contributions for tax purposes under point (i) is that disbursements are taxed, and (l) the funds accumulated are in principle to be paid out after the person concerned reaches pensionable age?
1.

Does Article 130 of Presidential Decree No 115 of 30 May 2002 on legal aid in Italian law — insofar as it stipulates that amounts payable to the defending council, the auxiliary to the judge and the court legal assessor are to be reduced by half — comply with Article 47(3) of the Charter of Fundamental Rights of the European Union, which stipulates that legal aid is to be made available to those who lack sufficient resources insofar as such aid is necessary to ensure effective access to justice?
EN Official Journal of the European Union C 26/23

Reference for a preliminary ruling from the College van Beroep voor het Bedrijfsleven (Netherlands) lodged on 31 October 2012 — Maatschap T. van Oosterom en A. van Oosterom-Boelhouwer v Staatssecretaris van Economische Zaken, Landbouw en Innovatie

(Case C-485/12)

2013/C 26/44

Language of the case: Dutch

Referring court

College van Beroep voor het Bedrijfsleven

Parties to the main proceedings

Applicants: Maatschap T. van Oosterom en A. van Oosterom-Boelhouwer

Defendants: Staatssecretaris van Economische Zaken, Landbouw en Innovatie

Question referred

Must Article 32 of Regulation (EC) No 796/2004 (1) be interpreted as meaning that a physical inspection in the field will always need to take place before it can be decided on the basis of aerial photographs taken in connection with the assessment of a declaration that the declaration submitted by a farmer is inaccurate?

(1) Commission Regulation (EC) No 796/2004 of 21 April 2004 laying down detailed rules for the implementation of cross-compliance, modulation and the integrated administration and control system provided for in of Council Regulation (EC) No 1782/2003 establishing common rules for direct support schemes under the common agricultural policy and establishing certain support schemes for farmers (OJ 2004 L 141, p. 18).
EN Official Journal of the European Union C 26/34

Reference for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 15 November 2012 — CTP v Regione Campania, Provincia di Napoli

(Case C-516/12)

2013/C 26/63

Language of the case: Italian

Referring court

Consiglio di Stato

Parties to the main proceedings

Applicant: CTP — Compagnia Trasporti Pubblici SpA

Defendants: Regione Campania, Provincia di Napoli

Questions referred

Does the right to compensation arise, for the purposes of Article 4 of Regulation No 1191/69, (1) only where, following the submission of an appropriate application, the competent authorities have not terminated the public service obligation which imposes an economic disadvantage on the transport undertaking, or is that provision applicable only in respect of service obligations which are to be terminated and cannot be maintained under the regulation?

(1) Regulation (EEC) No 1191/69 of the Council of 26 June 1969 on action by Member States concerning the obligations inherent in the concept of a public service in transport by rail, road and inland waterway (OJ 1969 L 156, p. 1).
EN Official Journal of the European Union C 46/12

Request for a preliminary ruling from the Landesgericht Salzburg (Austria) lodged on 9 November 2012 — Walter Vapenik v Josef Thurner

(Case C-508/12)

2013/C 46/22

Language of the case: German

Referring court

Landesgericht Salzburg

Parties to the main proceedings

Applicant: Walter Vapenik

Defendant: Josef Thurner

Question referred

Is Article 6(1)(d) of Regulation (EC) No 805/2004 (1) to be interpreted as applying only to contracts between business persons as creditors and consumers as debtors, or is it sufficient for at least the debtor to be the consumer for the provision also to apply to claims of a consumer against another consumer?

(1) Regulation (EC) No 805/2004 of the European Parliament and of the Council of 21 April 2004 creating a European Enforcement Order for uncontested claims (OJ 2004 L 143, p. 15)
—

declare that, by failing to adopt all the laws, regulations and administrative provisions necessary to comply with Directive 2009/12/EC of the European Parliament and of the Council of 11 March 2009 on airport charges (1) and in any event by not notifying the Commission of such provisions, the Republic of Poland has failed to fulfil its obligations under Articles 1, 6(2), 7, 8, 9 and 13 of that directive;
EN Official Journal of the European Union C 63/7

Request for a preliminary ruling from the Landgericht Bonn (Germany) lodged on 21 November 2012 — Mömax Logistik GmbH

(Case C-528/12)

2013/C 63/12

Language of the case: German

Referring court

Landgericht Bonn

Parties to the main proceedings

Appellant: Mömax Logistik GmbH

Other party to the proceedings: Bundesamt für Justiz

Question referred

Is a rule of national law under which the provisions of Article 57(1) of Directive 78/660/EEC (1) concerning the content, auditing and publication of the annual accounts are not applied to companies governed by the law of the Member State only if the parent undertaking is governed by the law of the same Member State and has prepared consolidated accounts in accordance with the law of that State compatible with the freedom of establishment (Article 49 TFEU)?

(1) Fourth Council Directive 78/660/EEC of 25 July 1978 based on Article 54(3)(g) of the Treaty on the annual accounts of certain types of companies, OJ 1978 L 222, p. 11.
—

According to the Commission, the judgment under appeal is also vitiated by error because it entirely overlooked the fact that the contested decision adopted by the Commission demonstrated that DEI’s preferential access to lignite, which was retained by the State measures at issue even after the liberalisation of the electricity market in Greece, and after the creation of the wholesale electricity supply market in May 2005, resulted in the structure of the market being affected because of the inequality of opportunity, thereby creating a situation in which DEI, solely by exercising its quasi-monopolistic rights to exploit lignite, was in a position to extend its dominant position from the primary to the secondary market. In that way DEI was led to engage in abusive behaviour on that secondary market, restricting or preventing access by new competitors (see, inter alia, the Court’s judgments in Raso, GB-Inno-BM, Connect Austria, Dusseldorp, CBEM and MOTOE). The extension of DEI’s dominant position from the primary to the secondary market and its retention on that market, and the undoubted competitive advantage that DEI enjoyed in electricity production because of the low cost of lignite, enabled DEI to feed electricity into the interconnected network in Greece at lower prices, in greater quantities and for a longer period, factors which amount to abusive behaviour (although the Court’s case-law does not require proof of behaviour of such kind, having regard to the specific facts of the present case).
EN Official Journal of the European Union C 63/11

Appeal brought on 13 December 2012 by the Italian Republic against the judgment delivered by the General Court (Fifth Chamber) on 27 September 2012 in Case T-257/10 Italy v Commission

(Case C-587/12 P)

2013/C 63/18

Language of the case: Italian

Parties

Appellant: Italian Republic (represented by: G. Palmieri and P. Gentili, avvocati dello Stato)

Other party to the proceedings: European Commission

Form of order sought

The appellant claims that the Court of Justice should:

— set aside the judgment of the General Court of 27 September 2012, served on 3 October 2012, in Case T-257/10 Italian Republic v Commission concerning an action seeking annulment under Article 264 TFEU of the Commission’s decision of 24 March 2010 (C(2010) 1711 final) relating to State aid No C 4/2003 (ex NN 102/2002), notified by letter of 25 March 2010 (SG Greffe (2010) D/4224), and as a consequence also annul that decision;

— order the Commission to pay the costs.

Grounds of appeal and main arguments

The Italian Republic puts forward four grounds in support of its appeal.

First, it alleges infringement of Article 108(2) and (3) TFEU and of Articles 4, 6, 7, 10, 13 and 20 of Regulation (EC) 659/99. (1) The General Court erred in accepting that the Commission could, in this case, adopt a new decision without opening a fresh investigation procedure in the course of which the Italian Republic and the interested parties were given an opportunity to make known their views.

Second, it pleads infringement of the second paragraph of Article 296 TFEU and of the principle of the authority of res judicata. The General Court should have annulled the Commission’s new decision in so far as it reproduced the same, incorrect, assessment which had already formed the basis of the first decision.

Third, the appellant alleges infringement of Article 107(1) TFEU and Articles 1(1)(d) and 2 of Regulation (EC) No 1998/2006. (2) The General Court erred in holding that the contested measures were not among the measures which, under that regulation, do not constitute State aid.

Fourth, the judgment under appeal infringes Article 14 of Regulation (EC) No 659/99 and is in breach of the principle of proportionality. The General Court erred in omitting to take note of the fact that the Commission’s decision required recovery of an advantage from which the undertaking had in actual fact never benefited.

(1) Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ 1999 L 83, p. 1).

(2) Commission Regulation (EC) No 1998/2006 of 15 December 2006 on the application of Articles 87 and 88 of the Treaty to de minimis aid (OJ 2006 L 379, p, 5).
EN Official Journal of the European Union C 55/6

Appeal brought on 10 December 2012 by Bimbo, SA against the judgment of the General Court (Seventh Chamber) delivered on 10 October 2012 in Case T-569/10: Bimbo, SA v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-591/12 P)

2013/C 55/09

Language of the case: English

Parties

Appellant: Bimbo, SA (represented by: C. Prat, abogado, R. Ciullo, Barrister)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs); Panrico SA

Form of order sought

The appellant claims that the Court should:

— set aside the judgment of the General Court (Seventh Chamber) dated 10 October 2012, in Case T-569/10

— annul the decision of the Fourth Board of Appeal of OHIM dated 7 October 2010 (Case R 838/2009-4), since it infringes Article 8(1)(b) of Regulation No. 207/2009 (1)

— order the respondent to pay the costs

Pleas in law and main arguments

In support of the appeal, the appellant relies on a single plea in law, alleging infringement of Article 8(1)(b) of Regulation No. 207/2009.

In particular, the appellant submits that the General Court:

(a) erred in law, in so far as it attributed an independent distinctive role to the element DOUGHNUTS solely based on the finding that it had an alleged average distinctive role and was wholly meaningless to the average Spanish consumer and, as a consequence, did not form a unitary whole or a logical unit with the component BIMBO, without explaining the reasons why the average distinctive character of the component DOGHNUTS or the absence of a meaning for it would automatically confer on that component an independent distinctive character in the perception of the relevant public; and

(b) erred in law, in so far as it based the finding that there was a likelihood of confusion, in essence, on the assumption that the element DOUGHNUTS has an independent distinctive role, without taking into account all the factors specific to the case, in particular, the fact that the first component of the composite trade mark was a trade mark with a reputation. In other words, the General Court interpreted the Medion doctrine as implying that a finding of an independent distinctive role in one of the components of a composite sign renders it unnecessary, in the overall assessment of the likelihood of confusion, to analyse all or some the other factors specific to the case, contrary to the doctrine of the overall assessment of the likelihood of confusion.

(1) Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark

OJ L 78, p. 1
EN Official Journal of the European Union C 225/53

Appeal brought on 29 November 2012 by Adrian Barliba against the order of the General Court (Fourth Chamber) delivered on 25 September 2012 in Case T-312/12: Barliba v Commission

(Case C-567/12 P)

2013/C 225/95

Language of the case: English

Parties

Appellant: Adrian Barliba (represented by: R. Neagu, avocat)

Other party to the proceedings: European Commission

By order of 27 June 2013 the Court of Justice (Seventh Chamber) held that the appeal was inadmissible.
EN Official Journal of the European Union C 86/10

Request for a preliminary ruling from the Bundespatentgericht (Germany) lodged on 10 January 2013 — Bayer CropScience AG

(Case C-11/13)

2013/C 86/16

Language of the case: German

Referring court

Bundespatentgericht

Parties to the main proceedings

Applicant and appellant: Bayer CropScience AG

Question referred

The following question is referred to the Court of Justice of the European Union for a preliminary ruling on the interpretation of Article 3(1) and of Article 1.8 and 1.3 of Regulation (EC) No 1610/96: (1)

Are the terms ‘product’ in Article 3(1) and Article 1.8 and ‘active substance’ in Article 1.3 of that regulation to be interpreted as covering a safener?

(1) Regulation (EC) No 1610/96 of the European Parliament and of the Council of 23 July 1996 concerning the creation of a supplementary protection certificate for plant protection products (OJ 1996 L 198, p. 30).
1.

Does European Union law, and in particular Article 31(3) of the Third Life Assurance Directive, (1) preclude an obligation on the part of a life assurance provider on the basis of the ‘open’ and/or unwritten rules of Netherlands law — such as the reasonableness and fairness which govern the (pre-)contractual relationship between a life assurance provider and a prospective policyholder, and/or a general and/or specific duty of care — to provide policyholders with more information on costs and risk premiums of the insurance than was prescribed in 1999 by the provisions of Netherlands law by which the Third Life Assurance Directive was implemented (in particular, Article 12(2)(q) and (r) of the RIAV [(Netherlands Regulation regarding the provision of information to policyholders)] 1998)?