ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 250/8

Reference for a preliminary ruling from the Rechtbank Amsterdam (Netherlands) lodged on 14 May 2012 — Koninklijke Luchtvaart Maatschappij NV, TUI Airlines Nederland BV, handelend onder de naam ArkeFly v Staatssecretaris van Infrastructuur en Milieu

(Case C-227/12)

2012/C 250/14

Language of the case: Dutch

Referring court

Rechtbank Amsterdam

Parties to the main proceedings

Applicants: Koninklijke Luchtvaart Maatschappij N.V., TUI Airlines Nederland B.V., handelend onder de naam ArkeFly

Defendants: Staatssecretaris van Infrastructuur en Milieu

Questions referred

1. Should Articles 7 and 16 of the Regulation, (1) together with the principle of Union loyalty, be interpreted in such a way that those Articles (in conjunction with national law) create for an administrative authority like the defendant the competence or the obligation to take enforcement action in respect of air carriers where they have failed to pay passengers compensation for delays, even where those passengers themselves have recourse to the courts in that regard, as laid down in Article 33 of the Montreal Convention? (2)

2. If the previous question is answered in the affirmative, does the imposition of administrative orders for periodic penalty payments such as those at issue here also form part of the possibility of enforcement?

3. Does it make any difference in that regard whether: (a) the air carriers have drawn passengers’ attention to those rights? (b) in the case of an alleged lack of compliance with Article 14 of the Regulation, an order for periodic penalty payments imposed on the air carriers was preceded by the imposition of a sanction due to non compliance with that Article? (c) the passengers concerned have made known to the air carriers whether or not they wish to receive that compensation? (d) the defendant has not chosen the instrument of an order for coercive administrative action (where, in the case of the air carriers’ non compliance with the order, the defendant himself pays the passengers out at the air carriers’ expense), but rather, the instrument of an order for periodic penalty payments (where, in the case of non compliance with the order, the air carriers are liable to the defendant for an amount equal to the total compensation payable, which amount accrues to public funds)?

(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) The Convention concluded on 28 May 1999 in Montreal for the unification of certain rules for international carriage by air, signed by the European Community on 9 December 1999 and approved on its behalf by Council Decision 2001/539/EC of 5 April 2001 (OJ 2001 L 194, p. 38).
3.

Is it relevant to the answer to question 1: (a) whether the consignment could be used as fuel in the same way as pure ULSD, but because of its lower flashpoint it no longer satisfied the (safety) requirements; (b) whether, as result of the new composition, the consignment could not be stored by the buyer pursuant to an environmental permit; (c) whether the consignment could not be used by the buyer for the purpose for which it had been bought, namely for sale as diesel fuel from the pump; (d) whether or not the buyer intended to return the consignment to the vendor pursuant to the purchase agreement; (e) whether the vendor did in fact intend to take back the consignment with a view to processing it through blending it and to place it back on the market; (f) whether or not the consignment can be restored either to the state originally intended or processed into a product that is marketable for a price approaching that of the market value of the original ULSD consignment; (g) whether that restoration/processing is a common production process; (h) whether the market value of the consignment in the state that it is in at the time that it is taken back by the vendor is (virtually) the same as the price of a product that does satisfy the agreed specifications; (i) whether the consignment taken back can be sold on the market in the state that it is in at the time that is taken back without being processed; (j) whether trade in products such as the consignment is common and is not regarded in relevant trade circles as trade in waste?
1.

Is Article 13 of Decision No 1/80 (1) to be interpreted as meaning that it is applicable to a substantive and/or formal condition governing first admission, even if such a condition — in the present case, the possession of a temporary residence permit — has as one of its objectives the prevention of illegal entry and illegal residence prior to the submission of an application for a residence permit and, to that extent, can be regarded as a measure, within the terms of paragraph 85 of the judgment in Joined Cases C-317/01 and C-369/01 Abatay and Others, (2) which may be made more stringent?
1.

Is Article 18(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 it also covers cases in which the cessation of the taxable economic activity is attributable to the fact that the taxable person is no longer able to charge or deduct VAT because he has been removed from the VAT register?
EN Official Journal of the European Union C 217/12

Reference for a preliminary ruling from the Tribunale Amministrativo Regionale per il Lazio (Italy) lodged on 24 May 2012 — Telecom Italia SpA v Autorità per le Garanzie nelle Comunicazioni, Presidenza del Consiglio dei Ministri

(Case C-256/12)

2012/C 217/27

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale per il Lazio

Parties to the main proceedings

Applicant: Telecom Italia SpA

Defendant: Autorità per le Garanzie nelle Comunicazioni, Presidenza del Consiglio dei Ministri

Question referred

Are the Community provisions in the sector, and in particular the provisions of Directive No 2002/20/EC, (1) to be interpreted as precluding the national rules referred to, in particular Law No 266 of 2005, as those provisions are actually applied by regulation included.

(1) Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (Authorisation Directive); OJ 2002 L 108, p. 21.
EN Official Journal of the European Union C 235/8

Appeal brought on 1 June 2012 by Guillermo Cañas against the order of the General Court (Third Chamber) delivered on 26 March 2012 in Case T-508/09 Cañas v Commission

(Case C-269/12 P)

2012/C 235/15

Language of the case: French

Parties

Appellant: Guillermo Cañas (represented by: Y. Bonnard, avocat)

Other parties to the proceedings: European Commission, World Anti-Doping Agency, ATP Tour Inc.

Form of order sought

— Annul the order delivered on 26 March 2012 by the General Court in Case T-508/09;

— Order the General Court to examine the action for annulment lodged on 22 December 2009 by Guillermo Cañas;

— Dismiss any other head of claim submitted by any opposing party;

— Order all the opposing parties to pay Guillermo Cañas’ costs.

Pleas in law and main arguments

The appellant sets out three grounds of appeal against the General Court’s decision.

First, the appellant submits that the General Court failed to have regard to the right of an undertaking which is temporarily excluded from a market to bring an action against the shelving of a complaint in respect of an infringement of competition law by making that undertaking’s locus standi conditional on the immediate advantage which that action for annulment would secure for it. The annulment of the shelving of a complaint never in the appellant’s view tends in itself to secure an immediate advantage for the applicant as it can lead only to the examination of the complaint, without any guarantee of the outcome.

Secondly, the appellant submits that the General Court erred in holding that his locus standi was lost because he is still adversely affected by the anti-competitive obstacles complained of. He takes the view that, despite the fact that he has ended his career in sports, he still has locus standi, namely an interest in securing the annulment of the Commission’s decision to shelve his complaint without taking any further action on it and in a declaration on the Commission’s part that the obstacles complained of are unlawful, these being the prior stages necessary for making a claim for damages against the World Anti-Doping Agency, ATP Tour Inc. and the International Council of Arbitration for Sport.

Thirdly, the appellant submits that the General Court held that the annulment of the shelving of his complaint would have no effect on his right to make a claim for damages against the undertakings that he has complained about since the administrative procedure before the Commission cannot preclude an action before the competent civil courts. However, that argument is based on an error of fact inasmuch as the decision of the Court of Arbitration for Sport of 23 May 2007 found that the obstacles complained of were not contrary to European Union competition law, which is the reason why, in the absence of a favourable decision on the part of the Commission, it was impossible for the appellant to make a claim for damages.
EN Official Journal of the European Union C 151/15

Reference for a preliminary ruling from the Tribunale Amministrativo Regionale per il Piemonte (Italy) lodged on 24 February 2012 — Fastweb SpA v Azienda Sanitaria Locale di Alessandria

(Case C-100/12)

2012/C 151/25

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale per il Piemonte

Parties to the main proceedings

Applicant: Fastweb SpA

Defendant: Azienda Sanitaria Locale di Alessandria

Other parties: Telecom Italia SpA, Path-net SpA

Question referred

Do the principles of equality of the parties, of non-discrimination and of protection of competition in public tendering procedures referred to in Directive 89/665/EEC, (1) as … amended by Directive 2007/66/EC, (2) preclude the most recent case-law (the ‘diritto vivente’) as laid down in Decision No 4 of [7 April] 2011 of the Plenary Assembly of the Consiglio di Stato, according to which the cross action, which seeks to challenge recognition of the legitimacy of the applicant in the main action by contesting its admission to the tendering procedure, must of necessity be heard before the main action and carry compelling implications for examination of the main action, even in cases where the applicant in the main action has an interest in the recommencement of the entire selection procedure (interesse strumentale) and irrespective of the number of competitors which took part in the procedure, with specific reference to cases where only two participants remained in play in that procedure (namely, the applicant in the main action and the applicant in the cross-action, the latter being also the successful tenderer), each seeking to have the other excluded on the grounds that its tender failed to meet the minimum requirements for the tender to be considered suitable?

(1) OJ 1989 L 395, p. 33.

(2) OJ 2007 L 335, p. 31.
EN Official Journal of the European Union C 141/8

Appeal brought on 8 June 2012 by Zdeněk Altner against the order of the General Court (Sixth Chamber) delivered on 23 March 2012 in Case T-535/11 Altner v Commission

(Case C-289/12 P)

2013/C 141/12

Language of the case: Czech

Parties

Appellant: Zdeněk Altner (represented by: J. Čapek, advokát)

Other party to the proceedings: European Commission

By order of 7 March 2013 the Court of Justice (Tenth Chamber) dismissed the appeal and ordered Zdeněk Altner to bear his own costs.
3.

What is meant by a person being 'under the control of a body or person falling within Article 2.2(a) or (b)? In particular, what is the nature, form and degree of control required and what criteria may or may not be used to identify such control?
EN Official Journal of the European Union C 366/22

Action brought on 27 June 2012 — European Commission v Hungary

(Case C-310/12)

2012/C 366/38

Language of the case: Hungarian

Parties

Applicant: European Commission (represented by: P. Hetsch, D. Düsterhaus and A. Sipos, acting as Agent(s))

Defendant(s): Hungary

Form of order sought

— Declare that Hungary has failed to fulfil its obligations under Directive 2008/98/EC of the European Parliament and of the Council of 19 November 2008 on waste and repealing certain Directives (1) since it has not adopted the laws, regulations and administrative provisions necessary to bring its national law into line with the Directive, or, in any event, has not communicated such provisions to the Commission, pursuant to Article 40 of the Directive.

— Order Hungary to pay a penalty payment pursuant to Article 260(3) TFEU of EUR 27 316,80 per day from the date of judgment, as it has not notified the Commission of the national measures adopted to implement Directive 2008/98/EC.

— Order Hungary to pay the costs.

Pleas in law and main arguments

Directive 2008/98/EC of the European Parliament and of the Council of 19 November 2008 on waste and repealing certain Directives is the principal legal instrument in this sector and establishes, inter alia, the essential concepts of waste management, such as what is to be understood by the terms waste, recycling and recovery.

The period prescribed for the implementation of the Directive expired on 12 December 2010. Hungary informed the Commission that the legislative work on the implementation of the Directive was not finished. As provisions implementing the Directive have not been adopted to date, the Commission takes the view that Hungary has not fulfilled its obligations as regards the full implementation of the Directive.

Pursuant to Article 260(3) TFEU, in actions for failure to fulfil obligations pursuant to Article 258, the Commission may ask the Court of Justice to order, in its judgment declaring that the Member State has failed to fulfil its obligations, the Member State concerned to notify the Commission of the measures transposing a directive adopted under a legislative procedure, or it may specify the amount of the lump sum or penalty payment to be paid by the Member State concerned which it considers appropriate in the circumstances. In compliance with the Communication from the Commission on implementation of Article 260(3) of the TFEU, (2) the Commission calculated the proposed penalty payment according to the method for the implementation of Article 228 EC provided for in the Communication.

(1) OJ 2008 L 312, p. 3.

(2) OJ 2011 C 12, p. 1.
3.

Does national legislation which provides that expulsions/deportations in principle have unlimited effect, unless the concerned person lodges an application for a time-limit, comply with EU law for the purposes of Article 11(2) of Directive 2008/115? Does such a provision comply with recital 4 in the preamble to the directive in the sense of a well managed migration policy through clear, transparent and fair rules?
EN Official Journal of the European Union C 287/23

Action brought on 11 July 2012 — European Commission v Federal Republic of Germany

(Case C-329/12)

2012/C 287/42

Language of the case: German

Parties

Applicant: European Commission (represented by: P. Hetsch und B. Schima, Agents)

Defendant: Federal Republic of Germany

Form of order sought

The applicant claims that the Court should:

— rule that, by failing to enact in full the laws, regulations and administrative provisions necessary to ensure transposition of Directive 2006/24/EC (1) of the European Parliament and the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC and, in any event, by not notifying those provisions in full to the Commission, the Federal Republic of Germany has failed to fulfil its obligations under that directive;

— impose, under Article 260(3) TFEU, by reason of the infringement of the obligation to notify transposition measures, a penalty payment in the amount of EUR 315 036,54 per day on the Federal Republic of Germany, payable to the own resources account of the European Union;

— order the Federal Republic of Germany to pay the costs of the proceedings.

Pleas in law and main arguments

The period within which the directive at issue had to be transposed expired on 15 September 2007.

By a judgement of 2 March 2010, the Bundesverfassungsgericht (German Federal Constitutional Court) ruled that the transposition measures adopted by the Federal Republic of Germany were unconstitutional and void. As a result, the German Government first informed the Commission that the directive had been partially transposed through legislation in force. Subsequently the German Government notified the draft version of a Law transposing the remaining provisions of the directive.

Since the draft concerned has not, as yet, been adopted, it is, according to the Commission, not open to dispute that the Federal Republic of Germany has failed to meet its obligation to transpose the directive in full. The abovementioned partial transposition is, in the Commission’s view, insufficient to attain the objectives of the directive under Article 1. Finally, the Commission points out that, in its opinion, the draft Law notified to it by Germany is insufficient for purposes of full implementation of the directive.

(1) OJ 2006 L 105, p. 54.
1.

Should point (i) of Article 132(1), Article 133 and Article 134 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, (1) as amended, ‘Directive 2006/112’, be interpreted as precluding exemption from value added tax of educational services provided for commercial purposes by bodies not governed by public law which follows from Article 43(1)(1) of the Ustawa z dnia 11 marca 2004 r. o podatku od towarów und usług (Law of 11 March 2004 on taxation of goods and services) (Dz. U. No 54, 535, as amended) in conjunction with Item 7 of Annex 4 to that Law, in the version in force in 2010?
2.

In particular, does 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, in particular Article 1(2)(a) and (d), Article 2 and Article 28 of that directive and Categories 8 and 12 in Annex [II] thereto, preclude national legislation which permits written agreements to be entered into between two contracting authorities for the provision of support to municipalities relating to the study, analysis and planning of the reconstruction of the historical centres of the municipalities of Barisciano and Castelvecchio Subequo, as described in greater detail in the technical specifications annexed to the agreement and defined by the national and regional legislation for the sector, for consideration which is not, prima facie, of a non-remunerative nature, where specific justification for the award of contracts under a privately negotiated procedure is to be found in post-emergency primary and secondary legislation, taking into account defined, specific public interests?
EN Official Journal of the European Union C 287/25

Appeal brought on 17 July 2012 by Mizuno KK against the judgment of the General Court (Fourth Chamber) of 8 May 2012 in Case T-101/11 Mizuno KK v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-341/12 P)

2012/C 287/48

Language of the case: German

Parties to the proceedings

Appellant: Mizuno KK (represented by: T. Wessing, T. Raab and H. Lauf, Rechtsanwälte)

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

Form of order sought

The appellant claims that the Court should:

— set aside the judgment of the General Court of 8 May 2012 in Case T-101/11 and the decision of the First Board of Appeal of OHIM of 15 December 2010 — Case R 0821/2010-1;

— order the other party to the proceedings to pay the costs incurred both at first instance and in the present proceedings.

Grounds of appeal and main arguments

The present appeal challenges the General Court’s judgment of 8 May 2012 in Case T-101/11, whereby the General Court dismissed the appellant’s action against the decision of the First Board of Appeal of OHIM of 15 December 2010 (Case R 821/2010-1) relating to opposition proceedings between Golfino AG and Mizuno KK.

The appellant bases its appeal essentially on the following grounds:

The General Court erred in law in its assessment of the scope of protection and the distinctiveness of an existing figurative mark comprising the letter ‘G’ and the symbol ‘+’. The General Court wrongly proceeded on the basis that the combination of both those elements was of no importance.

Hence, the General Court wrongly found that there was a likelihood of confusion between the earlier figurative mark and the mark applied for by the appellant, comprising the letter ‘G’, the symbol ‘+’, and an arrow symbol, inasmuch as, in the assessment of the similarity of the signs, the General Court did not focus on the overall impression of the two marks, but rather on their individual details.

In doing so, the General Court incorrectly assumed that the similarity of the letter ‘G’ in both figurative marks was of greater importance than their other, different, elements. In order properly to assess the marks, the General Court ought, however, to have examined only the overall symbols, and not focused on the letters ‘G’ in isolation.
1.

Is Article 47 of the Charter of Fundamental Rights of the European Union (1) (‘the Charter’), in conjunction with Article 38 thereof, together with Article 6(1) and Article 7(1) of Council Directive 93/13/EEC (2) on unfair terms in consumer contracts, to be interpreted as meaning that, where a court in a dispute on a consumer contract is assessing whether a contract term is unacceptable and a court of another Member State has already manifestly held, in comparable factual circumstances, that a contract term with a similar or identical content is unacceptable, the consumer has the right that the court, for the purposes of the assessment of whether the contract term at issue is unacceptable, takes into account that judgment of the court of the other Member State?
2.

Is Article 5(3) of Regulation (EC) No 44/2001 (2) to be interpreted as meaning that the harmful event occurred in one Member State (Member State A) if the tortious act which is the subject of the action or from which claims are derived was committed in another Member State (Member State B) and consists in participation in the tortious act (principal act) which took place in the first-named Member State (Member State A)?