ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 113/34

Action brought on 3 March 2010 — European Commission v Council of the European Union

(Case C-117/10)

2010/C 113/53

Language of the case: English

Parties

Applicant: European Commission (represented by: V. Di Bucci, L. Flynn, K. Walkerová, A. Stobiecka-Kuik, Agents)

Defendant: Council of the European Union

The applicant claims that the Court should:

— Annul Council Decision 2010/10/EC (1) of 20 November 2009 on the granting of State aid by the authorities of the Republic of Poland for the purchase of agricultural land between 1 January 2010 and 31 December 2013.

— order Council of the European Union to pay the costs of the present proceedings.

Pleas in law and main arguments

The Council, by adopting the contested decision, has overturned the Commission's decision resulting from the proposal for appropriate measures in Point 196 of the 2007 Agricultural Guidelines and from its unconditional acceptance by Poland, obliging the latter to bring to an end an existing aid scheme for the purchase of agricultural land by 31 December 2009 at the latest. Under the guise of exceptional circumstances, the Council has in fact allowed Poland to maintain that scheme until the expiry of the 2007 Agricultural Guidelines on 31 December 2013. The circumstances put forward by the Council as the grounds for its decision are self evidently not exceptional circumstances of such a nature as to justify the decision taken and make no allowance for the Commission's decision on that scheme. In support of its action for annulment, the Commission will put forward four pleas in law:

(a) In the first place, it considers that the Council was not competent to act under the third subparagraph of Article 88(2) EC because it did not decide on the Polish application within the three-month deadline fixed by the fourth subparagraph of that provision and because in any event the aid which it approved was existing aid which Poland had committed to eliminating by the end of 2009 when it accepted the appropriate measures proposed to it by the Commission.

(b) Secondly, the Council has misused its powers, seeking to neutralise the determination that aid measures which Poland was free to retain until the end of 2009 but not after that date could be kept in place until 2013.

(c) Next, in its third plea, the contested decision was adopted in breach of the principle of sincere cooperation which applies to Member States and also between institutions. By its decision, the Council has released Poland from its obligation of cooperation with the Commission in relation to the appropriate measures accepted by that Member State regarding existing aid for purchase of agricultural land in the context of the cooperation established by Article 88(1) EC.

(d) By its final plea, the Commission will argue that the Council committed a manifest error of assessment insofar it found that exceptional circumstances existed which justify the adoption of the approved measure.

(1) OJ L 4, 8.1.2010, p. 89
1.

Is the requirement ‘thereby enables the consumer to make a purchase’ in Article 2(i) of Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market (1) to be interpreted as meaning that an invitation to purchase exists as soon as information on the advertised product and its price is available so that the consumer may make a decision to purchase, or is it necessary that the commercial communication also offer an actual opportunity to purchase the product (e.g. an order form) or that there be access to such an opportunity (e.g. an advertisement outside a shop)?
4.

Must the general Community-law principles of legal certainty, the protection of legitimate expectations, procedural equity, 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 (5 years), of a specific interpretative provision which is at variance with the wording to be interpreted and in conflict with the consistent and settled interpretation of the institution responsible for ensuring uniform interpretation of the law [the Corte di cassazione], a provision which, moreover, is relevant for the purpose of resolving disputes to which the Italian State is a party?
EN Official Journal of the European Union C 113/21

Appeal brought on 9 February 2010 by European Renewable Energies Federation ASBL (EREF) against the order of the Court of First Instance (Sixth Chamber) delivered on 19 November 2009 in Case T-40/08: European Renewable Energies Federation ASBL (EREF) v Commission of the European Communities

(Case C-75/10 P)

2010/C 113/33

Language of the case: English

Parties

Appellant: European Renewable Energies Federation ASBL (EREF) (represented by: J. Kuhbier, Rechtsanwalt)

Other party to the proceedings: European Commission

Form of order sought

The applicant claims that the Court should:

— declare the order of the Court of First Instance of 19 November 2009 in Case T-40/08, EREF v Commission of the European Communities, null and void;

— refer the case back for judgment to the Sixth Chamber of the General Court;

— order the European Commission to pay the procedural costs of the appeal procedure.

Pleas in law and main arguments

The Appellant asks the Court to declare the Order of the CFI of 19 November 2009 in case T-40/08 null and void and to refer it back to the General Court for reconsideration.

The Appellant contests the CFI’s conclusion that it's lawyer, Dr Fouquet, could not represent it before the CFI and that its application was therefore inadmissible.

The CFI considers that because Dr Fouquet was nominated as a director of EREF on 29 June 2004 she could no longer be considered an independent third party. The Appellant submits that Dr Fouquet had not been formally nominated as a director of EREF — under Belgian law such a nomination would have required official registration with the competent Belgian authorities. The director status of Dr Fouquet at EREF was titular only and not, or only to a very limited extent, linked to the power of representation.

The Appellant also submits that even if it is assumed that the position of Dr Fouquet as director was of a formal nature the CFI incorrectly applied the criteria for assessing the status of a lawyer as an independent third party. It is submitted that the CFI misunderstood both the legal situation of EREF's representative before the Court and the real distribution of tasks and obligations between Dr Fouquet and EREF. Pursuant to German law the position of Dr Fouquet as director of EREF would allow her to represent the Appellant before the Court.
2.

In the circumstances of the main proceedings, is the decision of the customs authority concerning immediate acceptance of the customs declaration pursuant to Article 63 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code to be regarded as a decision of a customs authority in accordance with Article 4(5) in conjunction with Article 8(1), first indent, of the Customs Code, and this in respect of the entire content of the customs declaration made, when at the same time the following circumstances are present: (a) the customs authority’s decision concerning acceptance of the customs declaration was taken solely on the basis of the documents presented together with the customs declaration; (b) when the required examinations were being carried out prior to acceptance of the customs declaration, the suspicion existed that the tariff code declared for the goods was not correct; (c) when the required examinations were being carried out prior to acceptance of the customs declaration, the information on the content of the goods declared, which is relevant for the purposes of correct determination of the tariff code, was incomplete; (d) during the examination prior to acceptance of the declaration, a sample was taken in order that an expert report could be drawn up for the purpose of correct determination of the tariff code of the goods?
1.

On a proper construction of Article 11(2) of Directive 97/13/EC (1) of the European Parliament and of the Council of 10 April 1997 on a common framework for general authorisations and individual licences in the field of telecommunications services (OJ 1997 L 117, p. 15) and, in particular, the requirements to ensure optimal use of scarce resources and to foster innovative services, is it contrary to those provisions for national legislation to separate the proceeds of a charge on this type of resource (the fee for allocation of public radio frequencies) from the specific purpose for which it was previously expressly earmarked (the funding of research and training in the field of telecommunications and the performance of public service obligations), without specifying any other particular purpose?
Action brought on 15 March 2010 — European Commission v Kingdom of Belgium

(Case C-134/10)

(2010/C 161/25)

Language of the case: French

Parties

Applicant: European Commission (represented by: A. Nijenhuis and C. Vrignon, acting as Agents)

Defendant: Kingdom of Belgium

Form of order sought

— declare that, by failing to transpose correctly Article 31 of Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive), (1) the Kingdom of Belgium has failed to fulfil its obligations under that directive and Article 56 of the Treaty on the Functioning of the European Union;

— order the Kingdom of Belgium to pay the costs.

Pleas in law and main arguments

The European Commission raises three complaints in support of its action, which alleges infringement of the principle of proportionality by the contested national legislation, in particular with regard to the procedure and criteria leading to the award of must-carry status to radio and television networks.

First, it alleges that the defendant has failed to establish in a clear and foreseeable manner the objectives of general interest which justify the award of must-carry status. Broadcasters are therefore not in a position to ascertain in advance the nature and the scope of the conditions to be satisfied and the public service obligations it is required to observe.

Second, the Commission complains of the lack of transparency with regard to the award procedure, of the increased discretion conferred on the authorities in that the national legislation seems to impose on the bodies concerned the obligation to transmit all of the channels which it transmits and not only those channels pursuing the required objectives of general interest, as well as the discriminatory effect of the requirement as to establishment of those bodies in the national territory.

Third, the applicant alleges that the scope of Article 31 of the ‘Universal Service Directive’ was ignored with regard to making the broadcasting subject to the existence of a significant number of end-users of broadcast networks.

(1) OJ 2002 L 108, p. 51.
EN Official Journal of the European Union C 179/15

Appeal brought on 1 April 2010 by Nokia Oyj against the judgment of the General Court (Eighth Chamber) delivered on 20 January 2010 in Case T-460/07 Nokia Oyj v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-154/10 P)

2010/C 179/25

Language of the case: Finnish

Parties

Appellant: Nokia Oyj (represented by C. Rehaag, asianajaja)

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

Form of order sought

— set aside the judgment in Case T-460/07;

— order OHIM to pay the costs.

Pleas in law and main arguments

The appellant claims that the judgment of the General Court in Case T-460/07 should be set aside on the ground that the General Court wrongly considered in that judgment that there was a likelihood of confusion between the marks LIFE and LIFE BLOG and thus applied incorrectly Article 8(1)(b) of Regulation No 40/94. (1) The applicant submits that by so doing the judgment infringed European Union law.

The General Court indeed found, as regards the similarity of the marks, that the subjects of comparison were the marks LIFE and LIFE BLOG, but then proceeded in a manner that clearly contradicted that finding, by assessing only the component LIFE of the composite mark LIFE BLOG in order to justify the conclusion that the marks were similar.

In that connection the General Court incorrectly examined the questions of what kind of consumers belonged to the relevant group and how the consumers understood the mark, and thereby infringed the principles recognised in the case-law of the Court of Justice.

(1) 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 179/21

Appeal brought on 28 April 2010 by Enercon GmbH against the judgment of the General Court (Sixth Chamber) delivered on 3 February 2010 in Case T-472/07: Enercon GmbH v Office for Harmonisation in the Internal Market (Trade Marks & Designs)

(Case C-204/10 P)

2010/C 179/36

Language of the case: English

Parties

Appellant: Enercon GmbH (represented by: J. Mellor, Barrister, R. Böhm, Rechtsanwalt)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Hasbro Inc.

Form of order sought

The appellant claims that the Court should:

— allow the Appeal against the Judgment of the General Court and annul the Judgment of the General Court, to annul the decision of the fourth Board of Appeal and, as appropriate, the decision of the Opposition Division;

— (as appropriate) remit this case to the Office for a fresh consideration of the issues on this Opposition;

— order the intervener and the Office to pay the Appellant's costs of this Appeal

Pleas in law and main arguments

The Appellant submits that the General Court failed to recognise the errors in the decision of the Board of Appeal, based, as it was, on the illegitimate decision of the Opposition Division. In particular there was a complete failure to recognise (a) that the Medion (1) judgment concerned an exceptional situation in which the usual rule that the average consumer normally perceives a trade mark as a matter of overall impression is displaced but (b) no circumstances existed in this case sufficient to justify such an exceptional approach. No part of the earlier mark in this case had an ‘independent distinctive role’.

Furthermore the Appellant submits that, due to the incorrect application of a Medion type principle at the earlier stage of the assessment of similarity, no proper consideration was given to the global assessment of the likelihood of confusion.

(1) OJ C 106, 30.04.2004, p. 31
EN Official Journal of the European Union C 195/14

Action brought on 19 May 2010 — European Commission v Slovak Republic

(Case C-253/10)

2010/C 195/21

Language of the case: Slovak

Parties

Applicant: European Commission (represented by: A. Tokár and A. Marghelis, acting as Agents)

Defendant: Slovak Republic

Form of order sought

— declare that, by failing to adopt a national strategy for the implementation of the reduction of biodegradable waste going to landfills in accordance with Article 5(1) of Council Directive 1999/31/EC of 26 April 1999 on the landfill of waste, the Slovak Republic has failed to fulfil its obligations under Article 5(1) of that directive;

— order Slovak Republic to pay the costs.

Pleas in law and main arguments

According to Article 5(1) of Council Directive 1999/31/EC, ‘Member States shall set up a national strategy for the implementation of the reduction of biodegradable waste going to landfills, not later than two years after the date laid down in Article 18(1) and notify the Commission of this strategy’, Article 18(1) providing that ‘Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive not later than two years after its entry into force’. Pursuant to Article 19, the directive entered into force 16 July 1999. That directive thus had to be complied with by 16 July 2001 and the obligation to set up a national strategy, as laid down in Article 5(1), had to be fulfilled by 16 July 2003.

Since for new Member States no different time-limit was laid down in Article 54 of the Act concerning the conditions of accession, the Slovak Republic was to set up a national strategy for the implementation of the reduction of biodegradable waste going to landfills pursuant to Article 5(1) by the date of accession, that is, by 1 May 2004.

The European Commission thus claims that the Slovak Republic has failed to fulfil its obligations under Article 5(1) of Directive 1999/31/EC on the landfill of waste.
2.

If the answer to question (1) is in the negative, is the Combined Nomenclature to be interpreted as requiring that the false nail sets in issue be classified as ‘beauty or make-up preparations and preparations for the care of the skin (other than medicaments), including sunscreen or suntan preparations; manicure or pedicure preparations.manicure or pedicure preparations’ under tariff heading 3304 30 00 or as ‘Other articles of cutlery (for example, hair clippers, butchers' or kitchen cleavers, choppers and mincing knives, paperknives); manicure or pedicure sets and instruments (including nail files).manicure or pedicure sets and instruments (including nail files)’ under tariff heading 8214 20 OO?
EN Official Journal of the European Union C 209/15

Reference for a preliminary ruling from the Amtsgericht Köln (Germany) lodged on 11 May 2010 — Hannelore Adams v Germanwings GmbH

(Case C-226/10)

()

2010/C 209/23

Language of the case: German

Referring court

Amtsgericht Köln

Parties to the main proceedings

Applicant: Hannelore Adams

Defendant: Germanwings GmbH

Question referred

Does Article 4(3) of 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 (1) apply to a passenger with a confirmed reservation for an outward and a return flight who does not present herself for boarding for the return flight owing to the following circumstances:

— The operating air carrier denied the passenger, who had presented herself punctually for boarding for the outward flight, boarding against her will and announced its intention of denying her boarding on the return flight.

— Boarding was denied because of the operating air carrier’s mistaken assumption that, because of a chargeback, it was entitled to a processing fee, which the passenger had not yet paid?

(1) OJ 2004 L 46, p. 1.
—

declare that, by not adopting all of the laws, regulations and administrative provisions necessary to implement in full Directive 2007/44/EC of the European Parliament and of the Council of 5 September 2007 amending Council Directive 92/49/EEC and Directives 2002/83/EC, 2004/39/EC, 2005/68/EC and 2006/48/EC as regards procedural rules and evaluation criteria for the prudential assessment of acquisitions and increase of holdings in the financial sector, (1) or in any event by not informing the Commission of those provisions, the Republic of Poland has failed to fulfil its obligations under that directive;
—

declare that, by failing to adopt all the laws, regulations and administrative provisions necessary to comply with Council Directive 2005/47/EC of 18 July 2005 (1) on the Agreement between the Community of European Railways (CER) and the European Transport Workers’ Federation (ETF) on certain aspects of the working conditions of mobile workers engaged in interoperable cross-border services in the railway sector, and by failing to ensure that the social partners enter into a corresponding agreement, or by failing to notify the Commission thereof, the Republic of Estonia has failed to fulfil its obligations under the directive;
EN Official Journal of the European Union C 221/17

Reference for a preliminary ruling from the Tribunal de Grande Instance de Nanterre (France) lodged on 12 May 2010 — Tereos v Directeur général des douanes et droits indirects Receveur principal des douanes et droits indirects de Gennevilliers

(Case C-234/10)

()

2010/C 221/28

Language of the case: French

Referring court

Tribunal de Grande Instance de Nanterre

Parties to the main proceedings

Applicant: Tereos

Defendant: Directeur général des douanes et droits indirects, Receveur principal des douanes et droits indirects de Gennevilliers

Questions referred

1. Must Article 15(1)(d) of Regulation No 1260/2001 (1) be interpreted as meaning that, for the purpose of calculating the average loss, it is necessary to divide, for all categories of sugar exported, the total amount of the actual expenditure by the total amount of the quantities exported, regardless of whether refunds have actually been paid for those quantities or not?

2. Is Regulation No 1193/2009 (2) invalid in the light of Article 15 of Council Regulation No 1260/2001 in so far as it fixes a production levy for sugar calculated on the basis of an average loss the calculation of which involves, as regards sugar exported in processed products, a multiplication between the unit amount of the export refund relating to those products and the total quantities exported, including the quantities exported without benefiting from a refund, and not a division of the expenditure actually incurred by the total amount of the quantities exported, with or without a refund?

(1) Council Regulation (EC) No 1260/2001 of 19 June 2001 on the common organisation of the markets in the sugar sector (OJ 2001 L 178, p. 1).

(2) Commission Regulation (EC) No 1193/2009 of 3 November 2009 correcting Regulations (EC) No 1762/2003, (EC) No 1775/2004, (EC) No 1686/2005, (EC) No 164/2007 and fixing the production levies in the sugar sector for marketing years 2002/2003, 2003/2004, 2004/2005, 2005/2006 (OJ 2009 L 321, p. 1).
EN Official Journal of the European Union C 246/18

Reference for a preliminary ruling from the Hoge Raad der Nederlanden lodged on 2 June 2010 — Residex Capital IV CV v Gemeente Rotterdam

(Case C-275/10)

()

2010/C 246/30

Language of the case: Dutch

Referring court

Hoge Raad der Nederlanden

Parties to the main proceedings

Applicant: Residex Capital IV CV

Defendant: Gemeente Rotterdam

Question referred

Does the provision in the last sentence of Article 88(3) EC, now Article 108(3) TFEU, mean that, in a case such as the present, where the unlawful aid measure was implemented by granting the lender a guarantee which enabled the borrower to obtain a loan from the lender which would not have been available to it under normal market conditions, the national courts, within the framework of their obligation to remedy the consequences of the unlawful aid measure, are obliged, or at any rate authorised to cancel the guarantee, even if that does not result in the cancellation of the loan granted under the guarantee?