ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 138/3

Reference for a preliminary ruling from the Cour administrative (Luxembourg) lodged on 20 February 2012 — Kreshnik Ymerag, Kasim Ymeraga, Afijete Ymeraga-Tafarshiku, Kushtrim Ymeraga, Labinot Ymeraga v Minister for Labour, Employment and Immigration

(Case C-87/12)

2012/C 138/05

Language of the case: French

Referring court

Cour administrative

Parties to the main proceedings

Applicants: Kreshnik Ymerag, Kasim Ymeraga, Afijete Ymeraga-Tafarshiku, Kushtrim Ymeraga, Labinot Ymeraga

Defendant: Minister for Labour, Employment and Immigration

Question referred

To what extent does the fact of being a citizen of the Union and the related right to reside in the country of which a Union citizen is a national, as provided for by Article 20 of the TFEU, along with the rights, guarantees and obligations laid down in the Charter of Fundamental Rights and in particular and insofar as is relevant, in Articles 20, 21, 24, 33 and 34, confer a right to family reunification upon a sponsor who is a citizen of the Union and wishes to bring about, in the country in which he resides and of which he holds the nationality, the reunification with himself of his mother and father and two of his brothers, all of whom are third-country nationals, where he has not exercised his right to free movement and has not resided in a Member State other than that of which he holds the nationality?
1.

In the light of Recital 5 of the preamble to Directive 2002/74/EC, (1) is Article 2(1) of Council Directive 80/987/EEC (2) of 20 October 1980 on the protection of employees in the event of the insolvency of their employer, as amended by Directive 2002/74/EC of the European Parliament and of the Council of 23 September 2002 amending Council Directive 80/987/EEC of 20 October 1980 on the approximation of the laws of the Member States relating to the protection of employees in the event of the insolvency of their employer, to be interpreted as meaning that it requires the Member States to provide guarantees for employees’ claims in insolvency proceedings at every stage of those proceedings until the declaration of insolvency, and not only at the opening of those proceedings?
4.

On 8 May 2012, the Greek authorities notified the Commission of their letter of 25 April 2012 by which they demanded repayment of the State aid in question from Ellinikos Khrisos A.E. within 30 days. The Commission observes, however, that the amount that must be recovered is not mentioned in that letter. It is to be noted that, even if the principal sum of the State aid was calculated by the Commission in its aforementioned decision, the Greek authorities did not calculate the amount of interest, as they were obliged to do, and they do not mention it in their demand addressed to the company. In any event, that first reaction on the part of the Greek authorities occurred 14 months after the Commission decision and since then the Commission has no other information relating to the recovery of the State aid at issue.
EN Official Journal of the European Union C 217/13

Reference for a preliminary ruling from the Tribunale Amministrativo Regionale per il Lazio (Italy) lodged on 24 May 2012 — Vodafone Omnitel Nv v Autorità per le Garanzie nelle Comunicazioni

(Case C-258/12)

2012/C 217/29

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale per il Lazio

Parties to the main proceedings

Applicant: Vodafone Omnitel Nv

Defendant: Autorità per le Garanzie nelle Comunicazioni

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.
1.

The General Court erred in law in adopting a decision which infringes the right to an effective remedy. In considering, in a general manner, that the option of a reference for a preliminary ruling is always adequate and possible, the General Court infringed the appellant’s right at first instance to an effective remedy, such as laid down in Articles 6 and 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, and which is recognised expressly in Article 47 of the Charter of Fundamental Rights of the European Union.
EN Official Journal of the European Union C 151/15

Reference for a preliminary ruling from the Tribunale Amministrativo Regionale per le Marche (Italy) lodged on 20 February 2012 — Swm Costruzioni 2 SpA, D. I. Mannocchi Luigino v Provincia di Fermo

(Case C-94/12)

2012/C 151/24

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale per le Marche

Parties to the main proceedings

Applicants: Swm Costruzioni 2 SpA, D. I. Mannocchi Luigino

Defendant: Provincia di Fermo

Question referred

Must Article 47(2) of Directive 18/2004/EC (1) be interpreted as precluding, in principle, the legislation of a Member State, such as the Italian legislation set out in Article 49(6) of Legislative Decree No 163/2006, which prohibits, except in special circumstances, reliance on the capacities of more than one auxiliary undertaking, and provides that ‘[f]or works contracts, the tenderer may rely on the capacities of only one auxiliary undertaking for each qualification category. The invitation to tender may permit reliance on the capacities of more than one auxiliary undertaking on account of the value of the contract or the special nature of the services to be provided …’?

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

Are Article 106(1) in conjunction with Article 102 of the Treaty on the Functioning of the European Union, the free movement of goods, the freedom of establishment and the freedom to provide services to be interpreted as meaning that it is not contrary to any of them for a Member State to permit an undertaking which operates a specific waste treatment facility to be granted an exclusive right to process municipal waste in a specified area, in return for consideration, where a number of competing undertakings owning a number of different waste treatment facilities which satisfy the environmental requirements and use equivalent technologies are operating within a radius of 260 km?
EN Official Journal of the European Union C 250/10

Reference for a preliminary ruling from the Tribunal Central Administrativo Sul (Portugal) lodged on 6 June 2012 — Fazenda Pública v ITELCAR — Automóveis de Aluguer, Lda

(Case C-282/12)

2012/C 250/18

Language of the case: Portuguese

Referring court

Tribunal Central Administrativo Sul

Parties to the main proceedings

Applicants: Fazenda Pública, ITELCAR — Automóveis de Aluguer, Lda

Defendants: ITELCAR — Automóveis de Aluguer, Lda, Fazenda Pública

Question referred

Do Articles 63 TFEU and 65 TFEU (Articles 56 EC and 58 EC) preclude legislation of a Member State, such as that contained in Paragraph 61 CIRC (Código do Imposto sobre o Rendimento das Pessoas Coletivas) in the wording resulting from [Decree-Law No] 198/2001 of [3 July 2001], as amended by [Law No] 60 A/2005 of 30 [December 2005] (State Budget Act for 2006), which, in connection with the indebtedness of a taxable person residing in Portugal to an entity of a non-member country with which it maintains special relations within the meaning of Paragraph 58(4) CIRC, does not allow the setting off against tax of interest relating to the part of its indebtedness regarded as excessive under Paragraph 61(3) CIRC, borne and paid by a taxable person residing within national territory on the same basis as interest borne and paid by a taxable person residing in Portugal who is found to be excessively indebted to an entity residing in Portugal with which it maintains special relations?
3.

If Question 2 is answered in the affirmative: Are Article 31 of the Charter of Fundamental Rights and Article 7(1) of Directive 2003/88/EC of 4 November 2003 concerning certain aspects of the organisation of working time to be interpreted as precluding national legislation under which it may be provided in collective agreements that reductions in earnings occurring in the period of calculation as a result of short-time work, loss of working hours or non-culpable absence from work affect the calculation of the payment for annual leave with the result that the worker receives a lower payment for annual leave for the duration of the period of annual leave of at least four weeks, or receives a lower allowance in lieu of leave after the employment relationship has ended, than he would receive if the calculation of the payment for annual leave were based on the average earnings which the worker would have received in the period of calculation without such reductions in earnings? If so, what is the maximum percentage, with reference to the worker’s full average earnings, that a collectively agreed reduction, permitted by national legislation, of the payment for annual leave as a result of short-time work, loss of working hours or non-culpable absence from work may have in the period of calculation in order for the interpretation of that national legislation to be regarded as in conformity with EU law?
I.

1. Is the proper application of Articles 9 and 10 of Directive 92/43/EEC (1) prevented by a provision of national law (Article 3(4a) of Decree No 357/97 of the President of the Republic) under which power is conferred on the Regions and the Autonomous Provinces to propose, of their own motion, a review of the [Sites of Community Importance, ‘SCIs’], but no obligation is placed on them to exercise that power in response to a reasoned request to that effect made by private owners of land falling within SCIs, even where those private individuals argue that the land has suffered environmental degradation? 2. Is the proper application of Articles 9 and 10 of Directive 92/43/EEC prevented by a provision of national law (Article 3(4a) of Decree No 357/97 of the President of the Republic) under which power is conferred on the Regions and the Autonomous Provinces to propose, of their own motion, a review of the SCIs, through a periodic assessment, but the frequency with which that review must be conducted (every two or three years, for example) is not specified and there is no obligation for notice to be given of the periodic review by the Regions and Autonomous Provinces by means of some form of general advertising campaign designed to enable stakeholders to submit comments or proposals? 3. Is the proper application of Articles 9 and 10 of Directive 92/43/EEC prevented by a provision of national law (Article 3(4a) of Decree No 357/97 of the President of the Republic) under which a power of initiative is conferred on the Regions and Autonomous Provinces in relation to the review of the SCIs, but no power of initiative is also conferred on the State, even to act in lieu of the Regions or Autonomous Provinces in the event that they fail to act? 4. Is the proper application of Articles 9 and 10 of Directive 92/43/EEC prevented by a provision of national law (Article 3(4a) of Decree No 357/97 of the President of the Republic) under which power is conferred on the Regions and Autonomous Provinces to propose, of their own motion, a review of the SCIs, where that power is entirely discretionary and not mandatory, even where pollution or environmental degradation has taken place and this has been formally confirmed?
—

declare that, by not adopting all the laws, regulations and administrative provisions necessary to comply with Directive 2007/65/EC of the European Parliament and of the Council of 11 December 2007 amending Council Directive 89/552/EEC on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities, (1) and in any event by not informing the Commission of such provisions, the Republic of Poland has failed to fulfil its obligations under Article 3 of that directive;
EN Official Journal of the European Union C 287/22

Reference for a preliminary ruling from the Cour de cassation (Belgium) lodged on 4 July 2012 — État belge — SPF Finances v GIMLE SA

(Case C-322/12)

2012/C 287/40

Language of the case: French

Referring court

Cour de cassation

Parties to the main proceedings

Applicant: État belge — SPF Finances

Defendant: GIMLE SA

Question referred

Must Article 2(3), (4) and (5) of 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 (1) be interpreted as not only providing that additional information must be provided in the notes on the annual accounts but also requiring that — where the acquisition cost clearly does not reflect the real value of the assets concerned, thus giving a distorted view of the undertaking’s assets, liabilities, financial position and profit or loss — the rule that assets are to be entered in the accounts at their acquisition cost must be departed from and such assets immediately recognised as having their resale value, if that appears to be the real value?

(1) OJ 1978 L 222, p. 11.
EN Official Journal of the European Union C 287/28

Action brought on 25 July 2012 — European Commission v Italian Republic

(Case C-353/12)

2012/C 287/54

Language of the case: Italian

Parties

Applicant: European Commission (represented by: S. Thomas, D. Grespan and B. Stromsky, acting as Agents)

Defendant: Italian Republic

Form of order sought

The Commission claims that the Court should:

— declare that, by failing to take, within the prescribed period, all the measures necessary to recover the State aid considered unlawful and incompatible with the internal market by Commission Decision C(2009) 8123 of 28 October 2009 on State aid C 59/07 (ex N 127/06 and NN 13/06) implemented by Italy for Ixfin SpA (notified on 29 October 2009 and published in OJ 2010 L 167, p. 39), the Italian Republic has failed to fulfil its obligations under Articles 2, 3 and 4 of that decision and under the Treaty on the Functioning of the European Union;

— order the Italian Republic to pay the costs.

Pleas in law and main arguments

The subject of the Commission’s action is the non-implementation by the Italian Republic of the Commission’s decision on State aid in the form of a guarantee provided by the Ministry of Economic Development for a loan taken out by Ixfin with Banca Apulia SpA.

The Commission points out that the Italian Republic should have ensured fulfilment of its obligation to recover the aid by 1 March 2010 and, in addition, should have informed the Commission by 29 December 2009 of the measures taken to implement the decision.

At the time the present action was brought, the Italian Republic had not yet taken all the measures necessary for discharging those obligations.
3.

Likewise, if Question 2 is answered in the affirmative, when the Member State does not adopt any measure pursuant to Article 17(1) of Directive 95/46/EC and when the employer, responsible for processing that data, adopts a system of restricted access to that data which does not allow automatic access by the national authority responsible for inspecting working conditions, is the principle of the primacy of European law to be interpreted as meaning that the Member State cannot penalise that employer for such behaviour?
2.

If a period of imprisonment does not qualify as legal residence, is a person who has served a period of imprisonment permitted to aggregate periods of residence before and after his imprisonment for the purposes of calculating the period of 5 years needed to establish permanent right of residence under the Directive?
6.

Must the general Community law principles of legal certainty, the protection of legitimate expectations, equality of arms in proceedings, effective judicial protection, and the right to an independent tribunal and, more generally, to a fair hearing, guaranteed by Article 6(2) of the Treaty on European Union (as amended by Article 1(8) of the Treaty of Lisbon and to which Article 46 of the Treaty on European Union refers) — in conjunction with Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, and with Articles 46, 47 and 52(3) of the Charter of Fundamental Rights of the European Union, proclaimed in Nice on 7 December 2000, as implemented by the Treaty of Lisbon — be interpreted as precluding the adoption by the Italian State, after a significant period of time (9 years), of a provision such as Article 32(7) of Law No 183/10 which distorts the consequences of proceedings under way by directly prejudicing the employee to the benefit of the employer and which causes the effectiveness of reinstatement to be reduced proportionately as proceedings continue, so far as to be almost nullified?
EN Official Journal of the European Union C 9/26

Appeal brought on 24 August 2012 by the European Parliament 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-402/12 P)

2013/C 9/43

Language of the case: Dutch

Parties

Appellant: European Parliament (represented by: L. Visaggio and G. Corstens, Agents)

Other parties to the proceedings:

Vereniging Milieudefensie,

Stichting Stop Luchtverontreiniging Utrecht,

European Commission,

Kingdom of the Netherlands,

Council of the European Union

Form of order sought

The appellant claims that the Court should:

— set aside the judgment of the General Court (Seventh Chamber) of 14 June 2012 in Case T-396/09;

— rule on the substance of the case and dismiss the action of the applicants at first instance;

— order the applicants at first instance to pay the costs of this appeal.

Pleas in law and main arguments

The Parliament takes the view that the General Court erred in law in finding that it could review the validity of Regulation (EC) No 1367/2006 (1) in relation to Article 9(3) of the Aarhus Convention (2) even though this provision does not have direct effect. According to the Parliament, this finding of the General Court is based on a fundamentally incorrect interpretation of both the settled case-law on the possibility for individuals to rely on the provisions of an international agreement with the aim of challenging the validity of a European Union act, and of the nature and scope of the international obligations at issue in the present case.

In concrete terms, the General Court applied the case-law flowing from the Fediol (3) and Nakajima (4) judgments, but disregarded the fact that this case-law — which moreover has thus far remained confined to an extremely small number of cases — can be applied only by way of exception and under very specific conditions. In the judgment under appeal, the General Court failed to examine whether these conditions were actually present in this case, and in any event failed to take account of the exceptional nature of that case-law.

(1) 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).

(2) 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).

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

(4) Case C-69/89 Nakajima v Council [1991] ECR I-2169.
EN Official Journal of the European Union C 303/20

Appeal brought on 9 August 2012 by I Marchi Italiani Srl against the judgment of the General Court (Sixth Chamber) delivered on 28 June 2012 in Case T-133/09 I Marchi Italiani and Basile v OHIM — Osra

(Case C-381/12 P)

2012/C 303/35

Language of the case: Italian

Parties

Appellant: I Marchi Italiani Srl (represented by: L. Militerni and G. Militerni, avvocati)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), Osra SA

Form of order sought

— Set aside in part the judgment of the General Court of the European Union in so far as that Court dismissed the action brought by I Marchi Italiani Srl and ordered it to pay the costs, with the exception of those relating to the discontinuance;

— grant in part the forms of order sought at first instance and, consequently, annul the decision of the Second Board of Appeal of OHIM of 9 January 2009 — notified to the appellant on 30 January 2009 — in proceedings R 502/2008 between I Marchi Italiani Srl and Osra SA, which upheld the decision of the Cancellation Division which had allowed the application for revocation and declaration of invalidity of the mark ‘B Antonio Basile 1952’ following the action brought by Osra S.A;

— order OHIM to pay the costs.

Pleas in law and main arguments

The appeal lodged by the company I Marchi Italiani Srl is based on the following three grounds:

1. Infringement of Article 135(4) of the Rules of Procedure of the General Court, in so far as the General Court erred in declaring that the documents produced by I Marchi Italiani Srl must be excluded without it being necessary to assess their probative value, and that the arguments relating to the reputation of the contested mark and to the infringement of the principle of good faith were inadmissible.

2. Infringement of Article 53(2) of Regulation No 40/94 (1) (now Article 54(2) of Regulation No 207/2009), (2) in so far as the General Court erred in declaring that less than five years had elapsed between the date of registration of the (contested) trade mark and the date when the application for a declaration of invalidity was filed and that, therefore, the date on which the Community trade mark application was filed was irrelevant.

3. Infringement of Article 8(1)(b) of Regulation No 40/94, in so far as the General Court erred in finding that the marks at issue were similar and therefore misapplied that provision by concluding that there was a likelihood of confusion.

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1).

(2) Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).
4.

Thirdly, in Denmark’s submission, the General Court erred in law in relation to the applied burden of proof and standard of proof for the Commission and the Member States respectively, as the General Court states that the Commission, which conducted the inspections after the expiry of the set-aside period, can discharge its burden of proof by basing its presumptions on the circumstance that the established facts were also present during the set-aside period, and as the General Court states that Denmark’s burden of proof under the EAGGF implies that proof must be made out for all set-aside areas in Denmark, not just the areas inspected by the Commission. In so doing the General Court introduced a new, generally-formulated standard of proof for the Member States which departs from the Court of Justice’s previous case-law and which imposes a standard of proof on the Member States which is impossible to discharge in practice.