ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 219/6

Reference for a preliminary ruling from the Wojewódzki Sąd Administracyjny w Gdańsku (Republic of Poland), lodged on 9 May 2011 — Fortuna Sp. z o.o. v Dyrektor Izby Celnej w Gdyni

(Case C-213/11)

2011/C 219/06

Language of the case: Polish

Referring court

Wojewódzki Sąd Administracyjny w Gdańsku

Parties to the main proceedings

Applicant: Fortuna Sp. z o.o.

Defendant: Dyrektor Izby Celnej w Gdyni

Question referred

Must Article 1(11) of Directive 98/34/EC of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations (1) and of rules on Information Society services be interpreted as meaning that the term ‘technical regulation’, the draft of which must be communicated to the European Commission pursuant to Article 8(1) of that directive, includes a legislative measure which prohibits the alteration of authorisations for activity involving gaming on low-value-prize machines in respect of a change in the place at which that gaming is organised?

(1) Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations (OJ 1998 L 204, p. 37), as amended by Directive 98/48/EC of the European Parliament and of the Council of 20 July 1998 amending Directive 98/34/EC laying down a procedure for the provision of information in the field of technical standards and regulations (OJ 1998 L 217, p. 18).
EN Official Journal of the European Union C 219/11

Appeal brought on 23 May 2011 by the Portuguese Republic against the judgment delivered by the General Court (Eighth Chamber) on 3 March 2011 in Case T-387/07 Portugal v Commission

(Case C-246/11 P)

2011/C 219/14

Language of the case: Portuguese

Parties

Appellant: Portuguese Republic (represented by: L. Inez Fernandes, S. Rodrigues and A. Gattini, agents)

Other party to the proceedings: European Commission

Form of order sought

The Portuguese Republic claims that the Court should:

— Set aside the judgment of the General Court of the European Union in Case T-387/07 and, as a consequence:

— refer the case back to the General Court of the European Union to adjudicate on the application for annulment of Article 1 of Decision C(2007) 3772 of 31 July 2007, (1) pursuant to Article 263 of the Treaty on the Functioning of the European Union, in accordance with the form of order sought at first instance;

— order the Commission to pay the costs of the appeal proceedings and the proceedings at first instance;

or, in the alternative, in accordance with Article 61 of the Statute of the Court of Justice and Article 113 of the Rules of Procedure of the Court of Justice, the Court of Justice is asked to set aside the judgment of the General Court in Case T-387/07 and give final judgment in the case, granting the form of order sought by the Portuguese Republic at first instance and, thereby

— annul Article 1 of Decision C(2007) 3772, pursuant to Article 263 of the Treaty on the Functioning of the European Union, in accordance with the form of order sought at first instance; and

— order the Commission to pay the costs of the appeal proceedings and the proceedings at first instance.

Pleas in law and main arguments

Decision C(2007) 3772 is of direct concern to the Portuguese Republic. The reasons given for the decision infringe the principles of legality, proportionality, legitimate expectations and legal certainty, since the SGAIA [global grant for local development] decision was implemented in accordance with the legal framework applicable to it, as is apparent from the agreement concluded between the European Commission (EC) and the Caixa Geral de Depósitos (CGD).

Accordingly, the Portuguese Republic brings the present appeal on grounds of infringement of European Union law for the following reasons:

1. failure to state grounds or incorrect grounds;

2. the expenditure was implemented in a regular manner; infringement of Article 21(1) of Regulation (EEC) No 4253/88 (2) and the agreement.

(1) Commission Decision C(20027) 3772 of 31 July 2007 reducing the financial assistance granted by the European Regional Development Fund (ERDF) towards the global grant for local development in Portugal pursuant to Commission Decision C(95) 1769 of 28 July 1995.

(2) Council Regulation (EEC) No 4253/88 of 19 December 1988, laying down provisions for implementing Regulation (EEC) No 2052/88 as regards coordination of the activities of the different Structural Funds between themselves and with the operations of the European Investment Bank and the other existing financial instruments (OJ 1988 L 374, p. 1).
EN Official Journal of the European Union C 226/10

Reference for a preliminary ruling from the Juzgado de lo Contencioso-Administrativo No 1, Oviedo (Spain) lodged on 27 April 2011 — Susana Natividad Martínez Álvarez v Consejería de la Presidencia, Justicia e Igualdad del Principado de Asturias

(Case C-194/11)

2011/C 226/19

Language of the case: Spanish

Referring court

Juzgado de lo Contencioso-Administrativo No 1, Oviedo

Parties to the main proceedings

Applicant: Susana Natividad Martínez Álvarez

Defendant: Consejería de la Presidencia, Justicia e Igualdad del Principado de Asturias

Question referred

Is Article 7(1) of Directive 2003/88/EC (1) of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time, read in relation to Article 31(2) of the Charter of Fundamental Rights of the European Union, to be interpreted as precluding a domestic provision (such as Article 502(4) of the Ley Orgánica del Poder Judicial 6/1985 of 1 July) which provides that when temporary incapacity for work arises during leave which has already started, the leave can be deemed interrupted only if such incapacity involves admission to hospital, thus excluding other situations of incapacity, in which there would be no right to take the leave at a later date?

(1) OJ 2003 L 299, p. 9.
EN Official Journal of the European Union C 226/18

Action brought on 1 June 2011 — European Commission v Ireland

(Case C-279/11)

2011/C 226/35

Language of the case: English

Parties

Applicant: European Commission (represented by: P. Oliver, Agent)

Defendant: Ireland

The applicant claims that the Court should:

— declare that, by failing to take the necessary measures to comply with the judgment of this Court in Case C-66/06 Commission v Ireland, Ireland has failed to fulfil its obligations under Article 260 TFEU;

— order Ireland to pay to the Commission a lump sum of EUR 4 174,8 multiplied by the number of days between the ruling in Case C-66/06 and either compliance by Ireland with that ruling or the judgment in the present proceedings, whichever is the sooner;

— order Ireland to pay to the Commission a penalty payment of EUR 33 080,32 from the date of the judgment in the present proceedings to the date of compliance by Ireland with the ruling in Case C-66/06; and

— order Ireland to pay the costs.

Pleas in law and main arguments

Some two and a half years after the Court’s judgment of 20 November 2008, in case C-66/06, declaring that Ireland had not adopted measures fully transposing articles 2(1) and 4(2) to (4) of Council directive 85/337/EEC (1), Ireland has still failed to take the measures necessary to comply with that judgment. Therefore, the Commission proposes that Ireland should be ordered to pay a fine and a periodic penalty payment to reflect the serious nature of that infringement and its impact on the pursuit of the objectives pursued by the Community legislature.

(1) Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment

OJ L 175, p. 40
(l)

Within the meaning of Regulation (EC) No 2042/2003, which does not regulate the question of whether and under what conditions persons performing airworthiness review duties before it entered into force are entitled to continue to perform such duties following the entry into force of the said regulation, was the national legislature obliged to provide that persons who were performing the duties of inspector when the above regulation entered into force (or possibly before then) should automatically be reaccredited as inspectors, without first undergoing a selection and evaluation procedure? Or does the above Regulation (EC) No 2042/2003, the aim of which is to improve the safety of air transport, not to safeguard the professional rights of employees of the Member State’s authority responsible for airworthiness reviews, mean that the Member States are simply granted the discretion, in light also of the relevant requirements of provision AMC M.B.902(b)(4) in Subpart A of Section B of Annex I to EASA Decision No 2003/19/RM dated 28 November 2003, to continue, if they deem appropriate, to employ as airworthiness inspectors persons who were carrying out airworthiness reviews before the aforementioned regulation entered into force, even if those persons do not have the qualifications required under the said regulation?
EN Official Journal of the European Union C 252/15

Action brought on 6 June 2011 — European Commission v Republic of Poland

(Case C-281/11)

2011/C 252/29

Language of the case: Polish

Parties

Applicant: European Commission (represented by: L. Pignataro-Nolin and M. Owsiany Hornung, acting as Agents)

Defendant: Republic of Poland

Form of order sought

— declare that, by failing to transpose or transposing incorrectly Article 2(a), (b), (d), (e) and (f), Article 3(3), Article 4(3), Article 6, Article 7, Article 8, Article 9(1) and (2)(a), Article 10(3) and (4) and Article 18(1), second subparagraph, and (3) and (4) of, and the fourth indent of Part A, the first indent of Part B and the first indent of Part C of Annex V to, Directive 2009/41/EC of the European Parliament and of the Council of 6 May 2009 on the contained use of genetically modified micro-organisms, the Republic of Poland has failed to fulfil its obligations under that directive;

— order the Republic of Poland to pay the costs.

Pleas in law and main arguments

The Commission complains that the Republic of Poland has transposed incorrectly into Polish law the definitions of ‘micro-organism’, ‘genetically modified micro-organism’, ‘accident’ and ‘user’ contained respectively in Article 2(a), (b), (d) and (e) of Directive 2009/41. According to the Commission, an infringement is also constituted by the fact that the Polish legislation does not contain a definition of ‘notification’, a definition which appears in Article 2(f) of the directive.

The Commission further maintains that Articles 3(3), 6, 7, 8, 9(1) and (2)(a) and 18(1), second subparagraph, and (3) and (4) of Directive 2009/41 and the first indent of Part B and the first indent of Part C of Annex V thereto have not been transposed into Polish law.

According to the Commission, the transposition of Article 4(3) of Directive 2009/41 is incorrect because under Polish law the first class encompasses only activities of no risk whereas the directive also encompasses activities of negligible risk.

The Commission also complains that the Republic of Poland has implemented Article 10(3) of Directive 2009/41 incorrectly by restricting the possibility of specifying additional conditions for the contained use of genetically modified organisms solely to the situation where it is called for by the need to protect human health or the environment, whereas Article 10(3) of Directive 2009/41 does not contain such a restriction.

Furthermore, according to the Commission, Article 10(4) of Directive 2009/41 has been transposed into national law incorrectly because the latter introduces a 30-day period for which the directive does not provide.

Finally, the Commission asserts that the Polish authorities have not fully transposed the fourth indent of Part A of Annex V to Directive 2009/41.
The Commission bases its fourth ground of appeal on lack of motivation and contradictions in the judgment under appeal. The fourth ground of appeal is subsidiary to the first, that is even if the General Court did not act ultra petita, the judgment should still be annulled because it fails to provide sufficient and clear reasoning for the partial annulment (lack of motivation). There are at least two important instances on which the Judgment under Appeal lacks clarity. — o First, when describing the exception that the General Court considers should be made from the AssiDomän case law the conditions of such departure are unclear and contradictory. — o The second incoherence or unclear aspect in the reasoning of the General Court is the fact that at paragraph 57 of the Judgment under Appeal on the multiplier for deterrence the Commission is asked ‘in accordance with Article 266 TFEU, to draw the appropriate conclusions from that mistake and from the joint and several liability for the fine so far as concerns the applicant.’ However, at paragraph 59 the General Court exercises its unlimited jurisdiction on the fine and determines the fine amount applicable to Tomkins. The operative part of the Judgment under Appeal repeats the final amount of the fine without any mentioning of the need to modify that amount further. Regardless of the exact meaning of paragraph 57, the Commission notes that the annulment of the multiplier for deterrence in Case T-386/06 Pegler v Commission should be of no consequence for the multiplier of Tomkins.
(a)

Does Clause 4(4) of the Annex to Directive 1999/70/EC, (1) under which ‘[t]he period-of-service qualifications relating to particular conditions of employment shall be the same for fixed-term workers as for permanent workers except where different length-of-service qualifications are justified on objective grounds’, read in conjunction with Clause 5 thereof, as interpreted by the Court of Justice to the effect that the Italian rules which prohibit, in the context of the public service, the conversion of a fixed-term contract into a contract of unlimited duration are lawful, preclude the national rules on employment stabilisation for workers in precarious employment (Article 1(519) of Law No 296/2006), under which it is possible, in derogation from the rule requiring a public selection procedure, to recruit directly, under contracts of unlimited duration, workers who have already been recruited on fixed-term contracts but with the length of service accrued under those fixed-term contracts being set at nought; or does the loss of length of service, as provided for by the national legislature, fall within the ambit of the derogation relating to ‘objective grounds’, given the need to prevent workers in precarious employment from being admitted to the permanent staff to the detriment of workers already on the permanent staff, which would be the position if it were possible for workers in precarious employment to have the length of service accrued taken into account?
EN Official Journal of the European Union C 252/18

Reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands), lodged on 9 June 2011 — Staatssecretaris van Financiën v TNT Freight Management (Amsterdam) BV

(Case C-291/11)

2011/C 252/33

Language of the case: Dutch

Referring court

Hoge Raad der Nederlanden

Parties to the main proceedings

Appellant: Staatssecretaris van Financiën

Respondent: TNT Freight Management (Amsterdam) BV

Question referred

Should Note 1(g) to Chapter 30 of the Harmonised System, read in conjunction with Note 1(b) to Chapter 35 of the Harmonised System, be interpreted as meaning that blood albumin, which itself has no therapeutic or prophylactic effect but which has been produced with a view to, and is essential for, the preparation of products which do have a therapeutic or prophylactic effect, and which by its nature can be used only for that purpose, has been prepared for therapeutic or prophylactic uses within the meaning of that note?
EN Official Journal of the European Union C 269/27

Reference for a preliminary ruling from the Rechtbank Breda (Netherlands) lodged on 27 June 2011 — A. T. G. M. Van de Ven & M. A. H. T. Van de Ven-Janssen v Koninklijke Luchtvaart Maatschappij N.V.

(Case C-315/11)

2011/C 269/51

Language of the case: Dutch

Referring court

Rechtbank Breda

Parties to the main proceedings

Applicants:

A. T. G. M. Van de Ven

M. A. H. T. Van de Ven-Janssen

Defendant: Koninklijke Luchtvaart Maatschappij N.V.

Questions referred

1. Is a right to compensation in case of delay, as described in Article 7 of Regulation No 261/2004, (1) consistent with the last sentence of Article 29 of the Montreal Convention, (2) given the fact that, according to the first sentence of Article 29 of the Montreal Convention, actions for damages founded in contract, in tort or otherwise, can only be brought subject to the conditions and such limits of liability as are set out in the Montreal Convention?

2. If a right to compensation in case of delay, as described in Article 7 of Regulation No 261/2004, is not consistent with Article 29 of the Montreal Convention, are any limitations then imposed in respect of the moment when the ruling of the Court of Justice enters into effect as regards the present case and/or in general?

(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)

(2) See Council Decision 2001/539/EC of 5 April 2001 on the conclusion by the European Community of the Convention for the Unification of Certain Rules for International Carriage by Air (the Montreal Convention) (OJ 2001 L 194, p. 38)
1.

Must Article 37 of the TIR Convention and the second subparagraph of Article 454(3) of Commission Regulation (EEC) No 2454/93 (1) of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code be interpreted as meaning that, in the absence of an official finding as to the place where the offence or irregularity was committed, and of any proof to the contrary furnished within the specified period by the guarantor, the Member State where the existence of the offence or irregularity is detected is deemed to be the Member State where the offence or irregularity was committed, even if it is possible, on the basis of the place where the TIR carnet was accepted and where the goods were sealed, without further investigation, to ascertain via which Member State situated at the external border of the Community the goods were unlawfully introduced into the Community?
EN Official Journal of the European Union C 269/38

Appeal brought on 21 June 2011 by Longevity Health Products, Inc. against the order of the General Court (Second Chamber) delivered on 15 April 2011 in Case T-95/11: Longevity Health Products v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Case C-378/11 P)

2011/C 269/79

Language of the case: English

Parties

Appellant: Longevity Health Products, Inc. (represented by: J. Korab, Rechtsanwalt)

Other party to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs)

Form of order sought

The applicant claims that the Court should:

— Admit the complaint filed by the company Longevity Health Products, Inc.;

— Annul the decision of the General Court of April 15, 2011, T-95/11;

— Order the Office for Harmonisation in the Internal Market to pay the costs.

Pleas in law and main arguments

The applicant submits that the contested order should be annulled on the following grounds:

— The reasoning of the General Court is defective;
EN Official Journal of the European Union C 269/19

Reference for a preliminary ruling from the Bundesverwaltungsgericht (Germany) lodged on 9 March 2011 — Bundesrepublik Deutschland v Robert Klinke

(Case C-125/11)

2011/C 269/34

Language of the case: German

Referring court

Bundesverwaltungsgericht

Parties to the main proceedings

Applicant: Bundesrepublik Deutschland

Defendant: Robert Klinke

Question referred

Does Council Directive 2000/78/EC establishing a general framework for equal treatment in employment (1) and occupation apply to national legislation on the grant of assistance to public servants in cases of illness?

(1) OJ 2000 L 303, p. 16
—

declare that, by applying a reduced rate of VAT to: — Medicinal substances which may be used habitually or are suited to the production of medicinal products, in accordance with paragraph 1(5) of the first section of Article 91 and paragraph 1(3) of the second section of Article 91 of the Ley española del IVA (Spanish Law on VAT); — Sanitary products, material, equipment and appliances which, viewed objectively, can be used only to prevent, diagnose, treat, alleviate or cure human or animal illnesses or ailments, but which are not ‘normally intended to alleviate or treat disabilities, for the exclusive personal use of the disabled’, in accordance with the second subparagraph of paragraph 1(6) of the first section of Article 91 of the Spanish Law on VAT; — Aids and equipment which may be used essentially or primarily to treat physical disabilities in animals, in accordance with the first subparagraph of paragraph 1(6) of Article 91 of the Spanish Law on VAT; — Aids and equipment essentially and primarily used to treat human disabilities, but which are not intended for the exclusive personal use of ‘the disabled’; the common understanding of this term is to be assumed, that is as being different from and more restrictive than the term ‘the sick’, in accordance with the first subparagraph of paragraph 1(6) of the first section of Article 91 of the Spanish Law on VAT, the Kingdom of Spain has failed to fulfil its obligations under Article 98 of Council Directive 2006/112/EC (1) of 28 November 2006 on the common system of value added tax, in conjunction with Annex III thereto;
EN Official Journal of the European Union C 282/11

Reference for a preliminary ruling from the Tribunale di Santa Maria Capua Vetere (Italy) on 11 July 2011 — criminal proceedings against Raffaele Arrichiello

(Case C-368/11)

2011/C 282/20

Language of the case: Italian

Referring court

Tribunale di Santa Maria Capua Vetere (Italy).

Party to the main proceedings

Raffaele Arrichiello.

Questions referred

What is the interpretation to be given to Articles 43 EC and 49 EC concerning freedom of establishment and the freedom to provide services in the sector of bets on sporting events, for the purposes of determining whether or not the above-mentioned provisions of the treaty authorise national legislation establishing a monopoly regime in favour of the State and a system of concessions and authorisations which, in the case of a certain number of concessions, makes provision for: a) the existence of a general tendency to protect the holders of concessions granted in an earlier period, on the basis of a procedure which unlawfully excluded some operators; b) the presence of provisions de facto guaranteeing the maintenance of commercial positions acquired on the basis of a procedure which unlawfully excluded some operators (such as, for example, a prohibition on new concessionaires installing their windows at less than a certain distance from those already existing); and c) the setting of hypotheses for the expiry of the concession and acquisition of guarantees of a very high amount, such hypotheses including that in which the concessionnaire directly or indirectly operates cross-border gaming activities similar to those forming the subject-matter of the concession?