ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 226/7

Request for a preliminary ruling from the Curtea de Apel Alba Iulia (Romania) lodged on 7 June 2013 — Claudiu Roșu v Direcția Generală a Finanțelor Publice a Județului Sibiu — Activitatea de Inspecție Fiscală

(Case C-312/13)

(2013/C 226/11)

Language of the case: Romanian

Referring court

Curtea de Apel Alba Iulia

Parties to the main proceedings

Applicant: Claudiu Roșu

Defendant: Direcția Generală a Finanțelor Publice a Județului Sibiu — Activitatea de Inspecție Fiscală

Question referred

If a vendor has been reclassified as a taxable person for VAT purposes and the consideration for (price of) the supply of the immovable property has been determined by the parties, without any reference to VAT, must Articles 73 and 78 of Council Directive 2006/112/EC (1) be interpreted as meaning that the taxable amount is:

(a) the consideration for (price of) the supply of the property determined by the parties, less the rate of VAT, or

(b) the consideration for (price of) the supply of the property agreed by the parties?

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

Is there also a right under Article 7 of Regulation No 261/20004 (1) to compensation where the departure of the booked flight is delayed by more than three hours, the passenger rebooks on another airline and the delay on arrival compared with the original flight is thereby appreciably reduced, whilst both the original flight and the replacement flight arrive at the original destination far more than three hours late?
EN Official Journal of the European Union C 233/3

Appeal brought on 5 June 2013 by Società Italiana Calzature SpA against the judgment of the General Court (Third Chamber) delivered on 9 April 2013 in Case T-337/11 Società Italiana Calzature SpA v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Case C-309/13 P)

2013/C 233/04

Language of the case: Italian

Parties

Appellant: Società Italiana Calzature SpA (represented by: A. Rapisardi and C. Ginevra, avvocati)

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

Form of order sought

— Set aside judgment No 564400 delivered by the General Court of the European Union in Cases T-337/11 on 9 April 2013 and notified on that date and grant the claims made by Società Italiana Calzature SpA (‘SIC’) in the proceedings at first instance by annulling the decision of the Second Board of Appeal of OHIM of 8 April 2011 in Case R 0918/2010-2 and declare that VICINI’s Community trade mark No 4337.754 is to be refused registration on the ground of lack of novelty, as it is similar to such a degree that it may be confused with the earlier word sign ‘ZANOTTI’, which was registered in the European Union under No 244 277 and is owned by SIC;

— order OHIM to pay all the costs of both sets of proceedings;

— order VICINI SpA to reimburse SIC in respect of all the costs relating to the proceedings before the Opposition Division and the Board of Appeal.

Pleas in law and main arguments

The decision of the General Court is vitiated by inadequate and contradictory reasoning. The fact that the graphic element is visually dominant when compared with the word element of the mark applied for and that the words ‘By’ and ‘Giuseppe’ have been added to the term ‘ZANOTTI’ are not sufficient to rule out the possibility of a likelihood of confusion between the marks at issue, in view of the intrinsic qualities of the elements in question, in particular their lack of distinctive character.

The General Court also erred in finding that the word ‘ZANOTTI’, which is the word element of the mark applied for, does not have an independent distinctive role, thus also ruling out in this respect a likelihood of confusion between the marks at issue.
EN Official Journal of the European Union C 226/9

Request for a preliminary ruling from the Sozialgericht Leipzig (Germany) lodged on 19 June 2013 — Elisabeta Dano, Florin Dano v Jobcenter Leipzig

(Case C-333/13)

(2013/C 226/18)

Language of the case: German

Referring court

Sozialgericht Leipzig

Parties to the main proceedings

Applicants: Elisabeta Dano, Florin Dano

Defendant: Jobcenter Leipzig

Questions referred

1. Do persons who do not wish to claim payment of any benefits of social security law or family benefits under Article 3(1) of Regulation (EC) No 883/2004 (1) but rather special non-contributory benefits under Article 3(3) and Article 70 of the Regulation fall within the scope ratione personae of Article 4 of Regulation (EC) No 883/2004?

2. If Question 1 is answered in the affirmative: Are the Member States precluded by Article 4 of Regulation (EC) No 883/2004, in order to prevent an unreasonable recourse to non-contributory social security benefits under Article 70 of the Regulation which guarantee a level of subsistence, from excluding in full or in part European Union citizens in need from accessing those benefits which are provided to their own nationals who are in the same situation?

3. If Questions 1 or 2 are answered in the negative: Are the Member States precluded by a) Article 18 TFEU and/or b) Article 20(2)(a) TFEU in conjunction with the final sentence of Article 20(2) TFEU and Article 24(2) of Directive 2004/38/EC, (2) in order to prevent an unreasonable recourse to non-contributory social security benefits under Article 70 of Regulation (EC) No 883/2004 which guarantee a level of subsistence, from excluding in full or in part European Union citizens in need from accessing those benefits which are provided to their own nationals who are in the same situation?

4. If, according to the answers to the abovementioned questions, the partial exclusion of benefits which guarantee a level of subsistence complies with European Union law: May the provision of non-contributory benefits which guarantee a level of subsistence for European Union citizens, outside acute emergencies, be limited to the provision of the necessary funds to return to their home State or do Articles 1, 20 and 51 of the Charter of Fundamental rights require further payments which enable permanent residence?

(1) Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems (OJ 2004 L 166, p. 1).

(2) Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158, p. 77).
EN Official Journal of the European Union C 252/21

Request for a preliminary ruling from the Rechtbank van eerste aanleg te Mechelen (Belgium) lodged on 7 June 2013 — Openbaar Ministerie v Edgard Jan De Clercq and Others

(Case C-315/13)

2013/C 252/32

Language of the case: Dutch

Referring court

Rechtbank van eerste aanleg te Mechelen

Parties to the main proceedings

Applicant: Openbaar Ministerie

Defendants: Edgard Jan De Clercq, Emiel Amede Rosa De Clercq, Nancy Genevieve Wilhelmina Rottiers, Ermelinda Jozef Martha Tampère, Thermotec NV

Question referred

Must the provisions of Articles 56 and 57 TFEU (previously Articles 49 and 50 EC Treaty) and Article 3(1) and 3(10) of Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services (OJ 1997 L 18, p. 1), whether or not read in conjunction with Article 19 of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market (OJ 2006 L 376, p. 36), be interpreted as precluding Article 141 of the Programmawet (I) (Programme Law (I)) of 27 December 2006 under which a person for whom work is performed, either directly or through subcontracting, by posted employees or posted trainees, is placed under an obligation to make a declaration to the Rijksdienst voor Sociale Zekerheid (National Office for Social Security) by electronic means (or failing that, by fax or by letter), prior to the commencement of the employment of those persons, of the identification data of those persons who do not have the possibility of submitting the acknowledgement of receipt delivered to their employer of his prior declaration, in conjunction with Article 157 of the Programmawet (I) of 27 December 2006 and Article 183(1)(1) of the Sociaal Strafwetboek (Social Criminal Code), which penalises non-compliance with that obligation by criminal sanctions?
Articles 8.1, 8.2, 8.4, 8.5 / CTMR (EC) No 207/2009 (2). Art 6 bis Paris Convention.

When assessing the likelihood of confusion between Community Trademark application 3.478.311 ‘Caffé KIMBO & Design’ and earlier Spanish registration 291.655 for BIMBO, both registered to cover goods in class 30, the earlier trademark was not taken into account as a trademark with reputation but as a well-known trademark.

The Appellant proved that BIMBO is a trademark with reputation, referring t o Judgment of General Court ruling on Case T-357/11, dated 14 December 2012, which declares that BIMBO is a reputed Trademark.

Both as a well-known and as a reputed trademark, the comparison between the goods shows a high likelihood of confusion, which was not taken into account, the General Court considering them different enough to avoid confusion between goods of the same nature, origin, destination and sales channels.

A more accurate comparison should have determined that there exits a high risk of confusion and therefore should have resulted in the refusal of all goods of class 30, including, obviously, refusal of ‘flour, confectionery, ices, yeast and baking-powder’.

Both as a well-known and as a reputed trademark, comparison between the signs shows a high risk of confusion. BIMBO has proved 92% of brand awareness, and a market share of 60%, and deserves special protection. Therefore CTM application 3.478.311 ‘Caffé KIMBO & Design’ should have been refused in its entirety for goods of class 30.

Registration of CTM application 3.478.311 ‘Caffé KIMBO & Design’ will take unfair advantage of the distinctive character or the repute of the mark and is, or will be, detrimental to it.
2.

If the limitation period laid down in Article 3(1) of that regulation is applicable also to relations between the paying agency of the aid and the beneficiary of the aid deemed to have been granted unduly, should that limitation period be understood as being applicable only where administrative penalties within the meaning of Article 5 of Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995 are at issue, or also where ‘administrative measures’ within the meaning of Article 4(1) of that regulation are at issue — in this instance, repayment of sums wrongly received?
1.

Does infringement by the national administrative authority of the general principle of respect for the rights of the defence, which is also given expression in Article 41(2) of the Charter of Fundamental Rights of the European Union, (1) in (the course of the preparation of) an extension decision within the terms of Article 15(6) of Directive 2008/115/EC (2) of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals, automatically and in all cases mean that the detention must be lifted?
EN Official Journal of the European Union C 260/32

Appeal brought on 3 July 2013 by Associação de Empresas de Construção e Obras Públicas e Serviços (Aecops) against the judgment delivered on 19 April 2013 by the General Court (Seventh Chamber) in Case T-51/11 Associação de Empresas de Construção e Obras Públicas e Serviços (Aecops) v Commission

(Case C-379/13 P)

2013/C 260/59

Language of the case: Portuguese

Parties

Appellant: Associação de Empresas de Construção e Obras Públicas e Serviços (Aecops) (represented by: N. Morais Sarmento and L. Pinto Monteiro, advogados)

Other party to the proceedings: European Commission

Form of order sought

The appellant claims that the Court of Justice should:

— set aside the judgment under appeal in its entirety;

— annul the contested decision in its entirety;

— order the Commission to bear its own costs in addition to those incurred by the appellant.

Grounds of appeal and main arguments

Failure to adopt a decision within a reasonable period of time

(i) The proceedings are time-barred

The appellant submits that the contested decision was adopted after the four-year limitation period for proceedings, as set out in Article 3 of Council Regulation (EC, Euratom) No 2988/95, (1) had expired. Equally, even if there had been a possible interruption of the limitation period for proceedings, more than twice the limitation period had expired without any decision being taken in accordance with the fourth subparagraph of Article 3(1) of Regulation No 2988/95. Since the corresponding right was thus time-barred, the contested decision should be declared unlawful and unenforceable.

(ii) Infringement of the principle of legal certainty

The appellant considers that the fact that the Commission allowed more than 20 years to pass between the alleged irregularities and the adoption of the contested decision amounts to a failure to observe the principle of legal certainty. That fundamental principle of European Union law provides that all individuals have the right to have their cases dealt with by the European Union institutions within a reasonable period of time.

(iii) Infringement of the rights of the defence

The appellant considers that its rights of defence have been infringed in so far as, given that more than 20 years had passed between the alleged irregularities and the adoption of the final decision, the appellant was deprived of its right to submit its observations in good time, namely at a point in time when it was still in possession of documents enabling it to justify the expenses which the Commission deemed ineligible.

(1) Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995 on the protection of the European Communities financial interests (OJ 1995 L 312, p. 1).
1.

Directive 2009/28/EC of the European Parliament and of the Council of 23 April 2009 concerns the promotion of the use of energy from renewable sources and the amendment and subsequent repeal of Directives 2001/77/EC and 2003/30/EC. According to Article 1, the directive establishes a common framework for the promotion of energy from renewable sources. It sets mandatory national targets for the overall share of energy from renewable sources in gross final consumption of energy and for the share of energy from renewable sources in transport. It lays down rules relating to statistical transfers between Member States, joint projects between Member States and with third countries, guarantees of origin, administrative procedures, information and training, and access to the electricity grid for energy from renewable sources. It establishes sustainability criteria for biofuels and bioliquids.
EN Official Journal of the European Union C 274/13

Appeal brought on 11 July 2013 by Stichting Corporate Europe Observatory against the judgment of the General Court (Eighth Chamber) delivered on 7 June 2013 in Case T-93/11: Stichting Corporate Europe Observatory v European Commission

(Case C-399/13 P)

2013/C 274/21

Language of the case: English

Parties

Appellant: Stichting Corporate Europe Observatory (represented by: S. Crosby, Solicitor)

Other parties to the proceedings: European Commission, Federal Republic of Germany

Form of order sought

The Appellant claims that the Court should:

— uphold the appeal, set aside the judgment of 7 June 2013 of the General Court, and annul the Commission’s decision of 6 December 2010;

— order the Commission to pay the Appellant’s costs for this appeal and for the action in annulment before the General Court.

Pleas in law and main arguments

The Appellant submits that the General Court made three errors in law.

1. An error in law in holding the DG Trade Vademecum on Access to Documents (the Vademecum) was not intended to produce external effects;

2. An error in law by disregarding the presumption that the documents were intended to be seen by a large number of people;
EN Official Journal of the European Union C 298/3

Appeal brought on 22 July 2013 by Reber Holding GmbH & Co. KG against the judgment of the General Court (Fifth Chamber) delivered on 16 May 2013 in Case T-530/10 Reber Holding GmbH & Co. KG v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-414/13 P)

2013/C 298/05

Language of the case: German

Parties

Appellant: Reber Holding GmbH & Co. KG (represented by: O. Spuhler, M. Geitz, lawyers)

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

Form of order sought

The appellant claims that the Court should:

I. Set aside the judgment of the General Court of 16 May 2013 in Case T-530/10 and annul the decision of the Fourth Board of Appeal of OHIM of 14 September 2010 in Case R 363/2008-4;

II. In the alternative, set aside the judgment referred to in point I. above and refer the matter back to the General Court;

III. Order the respondent to pay the costs of the proceedings.

Pleas in law and main arguments

By its appeal the appellant puts forward a complaint of infringement of substantive Community law and an incomplete review and assessment of the factual basis. It claims that the General Court incompletely assessed the factual basis in this case which constitutes an error in law (judgment of the Court of Justice in Case C-51/09 P Becker v Harman International Industries (1)). This may be invoked before the Court of Justice in the context of an appeal (see Case C-317/10 P Union Investment Privatfonds v UniCredito Italiano (2)).

In the judgment under appeal the General Court assumes that the presented declaration in lieu of an oath makes no reference to the further evidence submitted. This assertion is inaccurate. It is clear from the declaration that reference is made to the further evidence attached. Therefore, the General Court did not fully review and assess the declaration. This therefore concerns an error in law in the judgment under appeal, which may be raised at the appeal stage.

If the General Court had fully reviewed and assessed the evidence before it, then it would have found genuine use of both of the marks cited in opposition pursuant to the first sentence of Article 42(2) and of Article 42(3) of the Community trade mark Regulation (3) (Regulation No 40/94). Consequently the judgment under appeal also infringes the first sentence of Article 42(2) and of Article 42(3) of Regulation No 40/94.

In addition, the judgment under appeal also infringes Article 15(1) and (2)(a) of Regulation No 40/94. The General Court erred in law by stating that mark No 115 1 678 cited in opposition, ‘W. Amadeus Mozart’ is not used as a mark.

(1) [2010] ECR I-5805.

(2) [2011] ECR I-5471.

(3) Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark, OJ 1994 L 11, p. 1.
EN Official Journal of the European Union C 274/6

Request for a preliminary ruling from the Conseil d’État (Belgium) lodged on 1 July 2013 — Ordre des architectes v Belgian State

(Case C-365/13)

2013/C 274/11

Language of the case: French

Referring court

Conseil d’État (Belgium)

Parties to the main proceedings

Applicant: Ordre des architectes

Defendant: Belgian State

Question referred

In so far as they oblige each Member State, for the purpose of access to and pursuit of professional activities, to give the same effect on its territory to the evidence of formal qualifications to which they refer as to the evidence of formal qualifications which it itself issues, must Articles 21 and 49 of Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications (1) be interpreted as preventing a State from requiring that, in order to be enrolled in a register of the Ordre des architectes, the holder of evidence of formal qualifications as an architect in accordance with Article 46 of that directive or the holder of evidence of formal qualifications referred to in Article 49(1) must also satisfy conditions concerning a professional traineeship or experience, equivalent to those required of the holders of diplomas issued on its territory after they have obtained those diplomas?

(1) OJ 2005 L 255, P.22.
EN Official Journal of the European Union C 313/10

Request for a preliminary ruling from the Handelsgericht Wien (Austria) lodged on 5 August 2013 — Pez Hejduk v EnergieAgentur.NRW GmbH

(Case C-441/13)

2013/C 313/18

Language of the case: German

Referring court

Handelsgericht Wien

Parties to the main proceedings

Applicant: Pez Hejduk

Defendant: EnergieAgentur.NRW GmbH

Question referred

Is Article 5(3) 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) to be interpreted as meaning that, in a dispute concerning an infringement of rights related to copyright which is alleged to have been committed in that a photograph was kept accessible on a website, the website being operated under the top-level domain of a Member State other than that in which the proprietor of the right is domiciled, there is jurisdiction only

— in the Member State in which the alleged infringer is established; and

— in the Member State(s) to which the website, according to its content, is directed?

(1) OJ 2001 L 12, p. 1.
EN Official Journal of the European Union C 313/9

Request for a preliminary ruling from the Consiglio di Stato/Italy lodged on 26 July 2013 — Ministero dell’Economia e delle Finanze, Amministrazione Autonoma dei Monopoli di Stato (AAMS) v Yesmoke Tobacco SpA

(Case C-428/13)

2013/C 313/16

Language of the case: Italian

Referring court

Consiglio di Stato

Parties to the main proceedings

Applicants: Ministero dell’Economia e delle Finanze, Amministrazione Autonoma dei Monopoli di Stato (AAMS)

Defendant: Yesmoke Tobacco SpA

Question referred

Do Article 8(2) of Directive 95/59/EC (1) of 27 December 1995 and Article 7(2) of Directive 2011/64/EU (2) of 21 June 2011, by providing, respectively, that the proportional rate and ad valorem rate, and the amount of the specific excise duty, ‘must be the same for all cigarettes’, preclude a provision of national law such as Article 39g(4) of Legislative Decree No 504 of 26 October 1995 (as amended by Article 55(2a)[(c)] of Decree-Law No 78 of 31 May 2010, converted, with amendments, in Law No 122 of 30 July 2010), which provides that the excise duty payable on cigarettes with a retail selling price less than that of cigarettes in the most popular price category is to be 115 % of the basic amount, thereby establishing an excise duty at a fixed minimum rate specific to cigarettes with a lower selling price and not a minimum amount of excise duty for all price categories of cigarettes, as permitted by Article 16(7) of Directive 95/59/EC and Article 14(2) of Directive 2011/64/EU?

(1) Council Directive 95/59/EC of 27 November 1995 on taxes other than turnover taxes which affect the consumption of manufactured tobacco (OJ 1995 L 291, p. 40).

(2) Council Directive 2011/64/EU of 21 June 2011 on the structure and rates of excise duty applied to manufactured tobacco (OJ 2011 L 176, p. 24).
—

declare that, by refusing to provide the cash benefit for care, cash benefit for assistance and cash benefit to compensate for increased costs under Law No 447/2008 to persons entitled who have their residence in a Member State other than the Slovak Republic, the Slovak Republic has failed to fulfil its obligations under Article 48 of the Treaty on the Functioning of the European Union and Articles 7 and 21 of Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems; (1)