ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 191/8

Request for a preliminary ruling from the Tribunale di Udine (Italy) lodged on 24 February 2016 — Criminal proceedings against Giorgio Fidenato and Others

(Case C-111/16)

(2016/C 191/10)

Language of the case: Italian

Referring court

Tribunale di Udine

Criminal proceedings against:

Giorgio Fidenato, Leandro Taboga and Luciano Taboga

Questions referred

1. When requested to do so by a Member State, is the Commission required, for the purposes of Article 54(1) of Regulation No 178/2002, (1) to adopt emergency measures within the meaning of Article 53 of Regulation No 178/2002, even if in the Commission’s assessment in respect of certain food or feed there is no serious, evident risk to human and animal health or to the environment?

2. Where the Commission notifies the Member State which had sought its assessment that its assessment is at odds with the Member State’s request — an assessment which in theory precludes the need to adopt emergency measures — and where, accordingly, the Commission does not adopt such emergency measures within the meaning of Article 34 Regulation No 1829/2003 (2) as requested by that Member State, is the Member State which made the request authorised, pursuant to Article 53 of Regulation No 178/2002, to adopt interim emergency measures?

3. May considerations relating to the precautionary principle which go beyond the parameters of serious and evident risk to human or animal health or the environment in the use of food or feed justify the adoption of interim emergency measures by a Member State within the meaning of Article 34 of Regulation No 1829/2003?

4. Where it is clear and obvious that the European Commission has made the assessment that the substantive conditions for the adoption of emergency measures for food or feed are not met, which is later confirmed by an EFSA Scientific Opinion, and where that assessment was notified in writing to the Member State which made the request, may that Member State continue to maintain in force its existing interim emergency measures and/or extend the validity of such interim emergency measures, when the interim period for which they were put in place has expired?

(1) Regulation (EC) No 178/2002 of the European Parliament and of the Council of 28 January 2002 laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety (OJ 2002 L 31, p. 1).

(2) Regulation (EC) No 1829/2003 of the European Parliament and of the Council of 22 September 2003 on genetically modified food and feed (OJ 2003 L 268, p. 1).
EN Official Journal of the European Union C 175/5

Appeal brought on 29 January 2016 by Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) against the judgment of the General Court (Fourth Chamber) delivered on 18 November 2015 in Case T-659/14: Instituto dos Vinhos do Douro e do Porto, IP v OHIM

(Case C-56/16 P)

(2016/C 175/04)

Language of the case: English

Parties

Appellant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (represented by: O. Mondéjar Ortuño and E. Zaera Cuadrado, Agents)

Other parties to the proceedings: Instituto dos Vinhos do Douro e do Porto, IP, Bruichladdich Distillery Co.Ltd

Form of order sought

The appellant claims that the Court should:

— uphold the appeal in its entirety;

— annul the judgment under appeal;

— order the applicant before the General Court to pay the costs.

Pleas in law and main arguments

The General Court infringed Article 53(1)(c) of Regulation (EC) No 207/2009 (1), read in conjunction with Article 8(4), and Article 53(2)(d) of Regulation (EC) No 207/2009 by considering that the protection conferred by Regulation (EC) No 491/2009 (2) to registered designations of origin can be supplemented by Decreto-Lei No 173/2009 and Decreto-Lei No 212/2004 and the Portuguese Intellectual Property Code.

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

(2) Council Regulation (EC) No 491/2009 of 25 May 2009 amending Regulation (EC) No 1234/2007 establishing a common organization of agricultural markets and on specific provisions for certain agricultural products (Single CMO Regulation) OJ L 154, p. 1
1.

For the purposes of Article 49 TFEU (freedom of establishment) and in the light of the constitutional relationship between Gibraltar and the United Kingdom: 1.1. Are Gibraltar and the UK to be treated as if they were part of a single Member State (a) for the purposes of EU law and if so, does that have the consequence that Article 49 TFEU has no application as between the UK and Gibraltar save to the extent that it can apply to an internal measure, or alternatively (b) for the purposes of Article 49 TFEU taken individually, so that that article does not apply save to the extent that it can apply to an internal measure? Alternatively, 1.2. Having regard to Article 355(3) TFEU, does Gibraltar have the constitutional status of a separate territory to the UK within the EU such that either (a) the exercise of the right of establishment as between Gibraltar and the UK is to be treated as intra-EU trade for the purposes of Article 49 TFEU, or (b) Article 49 TFEU applies to prohibit restrictions on the exercise of the right of establishment by nationals in the UK in Gibraltar (as a separate entity)? Alternatively, 1.3. Is Gibraltar to be treated as a third country or territory with the effect that EU law is only engaged in respect of transactions between the two in circumstances where EU law has effect between a Member State and a non- Member State? Alternatively, 1.4. Is the constitutional relationship between Gibraltar and the UK to be treated in some other way for the purposes of Article 49 TFEU?
EN Official Journal of the European Union C 191/21

Request for a preliminary ruling from the Conseil d'État (Belgium) lodged on 31 March 2016 — Sadikou Gnandi v État belge

(Case C-181/16)

(2016/C 191/26)

Language of the case: French

Referring court

Conseil d'État

Parties to the main proceedings

Appellant: Sadikou Gnandi

Respondent: État belge

Question referred

Must Article 5 of Directive 2008/115/EC 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, (1) which requires Member States to respect the principle of non-refoulement when they are implementing that directive, and the right to an effective remedy provided for under Article 13(1) of that directive and under Article 47 of the Charter of Fundamental Rights of the European Union, be interpreted as precluding the adoption of a return decision, as provided for under Article 6 of the aforementioned Directive 2008/115/EC and under Article 52/3(1) of the Law of 15 December 1980 on entry to the national territory, settlement, residence and removal of foreign nationals and Article 75(2) of the Royal Decree of 8 October 1981 on entry to the national territory, residence, settlement and removal of foreign nationals, after the rejection of the asylum application by the Commissioner General for Refugees and Stateless Persons and therefore before the legal remedies available against that rejection decision can be exhausted and before the asylum procedure can be definitively concluded?

(1) OJ 2008 L 348, p. 98.
In the event that the first question is answered in the negative:

Does Article 78 of Council Regulation (EEC) No 2913/92 (2) of 12 October 1992 establishing the Community Customs Code, as amended by Regulation (EC) No 2700/2000 (3) of the European Parliament and of the Council of 16 November 2000, preclude the customs authority, in the course of a revision procedure, from refusing to refund an anti-dumping duty on the ground that the declarant did not present a valid commercial invoice until after the customs declaration had been made?
EN Official Journal of the European Union C 200/7

Request for a preliminary ruling from the Tribunale Amministrativo Regionale per le Marche (Italy) lodged on 7 March 2016 — Edra Costruzioni Soc. coop., Edilfac Srl v Comune di Maiolati Spontini

(Case C-140/16)

(2016/C 200/10)

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale per le Marche

Parties to the main proceedings

Applicants: Edra Costruzioni Soc. coop., Edilfac Srl

Defendant: Comune di Maiolati Spontini

Question referred

Do the Community principles of the protection of legitimate expectations and legal certainty, together with the principles of the free movement of goods, the freedom of establishment and the freedom to provide services, laid down in the Treaty on the Functioning of the European Union (TFEU), as well as the principles deriving therefrom, such as equality of treatment, non-discrimination, mutual recognition, proportionality and transparency, referred to (most recently) in Directive 2014/24/EU, (1) preclude national legislation, such as the Italian legislation founded on the combined provisions of Articles 87(4) and 86(3a) of Legislative Decree No 163 of 2006 and Article 26(6) of Legislative Decree No 81 of 2008, as interpreted, with a view to securing proper respect for, and uniform application of, the law, pursuant to Article 99 of the Code of Administrative Procedure, by judgments No 3 and No 9 of 2015 of the Plenary Assembly of the Consiglio di Stato, according to which the failure to list the corporate safety and security costs separately in tenders in a procedure for the award of a public works contract inevitably results in the exclusion of the tendering undertaking concerned, even in the case where the obligation to list that information separately was not set out either in the tender rules or on the attached form to be completed for the submission of the tender, and even though, in substantive terms, the tender in question took into account the minimum costs of corporate safety and security?

(1) Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC (OJ 2014 L 94, p. 65).
2.

If the answer to that question is in the negative: Can Articles 49 and 54 of the Treaty on the functioning of the European Union be interpreted as meaning that the requirement under national law that proceedings for the liquidation of the company be carried out — including the conclusion of current business, recovery of debts, fulfilment of obligations and sale of company assets, satisfaction or securing of creditors, submission of a financial statement on the conduct of those acts, and indication of the person to whom the books and documents are to be entrusted — which precede the winding-up thereof, which occurs on removal from the commercial register, is a measure which is appropriate, necessary and proportionate to a public interest deserving of protection in the form of safeguarding of creditors, minority shareholders, and employees of the migrant company?
EN Official Journal of the European Union C 243/27

Appeal brought on 13 May 2016 by Panalpina World Transport (Holding) Ltd, Panalpina Management AG, Panalpina China Ltd against the judgment of the General Court (Ninth Chamber) delivered on 29 February 2016 in Case T-270/12: Panalpina World Transport (Holding) Ltd and Others v European Commission

(Case C-271/16 P)

(2016/C 243/27)

Language of the case: English

Parties

Appellants: Panalpina World Transport (Holding) Ltd, Panalpina Management AG, Panalpina China Ltd (represented by: S. Mobley, A. Stratakis, A. Gamble, Solicitors)

Other party to the proceedings: European Commission

Form of order sought

The appellants claim that the Court should:

— set aside the contested judgment, insofar as it dismisses the Appellants’ first plea in respect of the infringements;

— vary Articles 2(2) and 2(3) of the Decision of 28 March 2012 in case COMP/39462 – Freight Forwarding (the ‘Decision’) insofar as those provisions concern the Appellants and, exercising its unlimited jurisdiction, reduce the fines imposed on the Appellants; and

— in any event, order the Commission to pay its own costs and the Appellants’ costs in connection with these proceedings and those before the General Court.

Pleas in law and main arguments

When satisfying itself that the Commission did not depart from its decision-making practice, make an error of law, or infringe the principles of proportionality and equal treatment, the General Court erred in law by manifestly exceeding the limits of a reasonable assessment of the evidence before it and misapplying relevant case law. The Appellants’ specific pleas in law are as follows:

1. That the General Court erred in law by manifestly exceeding the limits of a reasonable assessment of the evidence as to whether the infringements in question, and the AMS and CAF infringements in particular, related to the entirety of the freight forwarding ‘package of services’.
EN Official Journal of the European Union C 232/5

Appeal brought on 11 April 2016 by SolarWorld AG against the order of the General Court (Fifth Chamber) delivered on 1 February 2016 in Case T-141/14: SolarWorld AG and Others v Council of the European Union

(Case C-204/16 P)

(2016/C 232/06)

Language of the case: English

Parties

Appellant: SolarWorld AG (represented by: L. Ruessmann, Avocat, J. Beck, Solicitor)

Other parties to the proceedings: Brandoni solare SpA, Solaria Energia y Medio Ambiente, SA, Council of the European Union, European Commission, China Chamber of Commerce for Import and Export of Machinery and Electronic Products (CCCME)

Form of order sought

The applicant claims that the Court should:

— declare the Appeal admissible and well-founded;

— set aside the General Court's Order in Case T-141/14;

— rule on the substance and annul Article 3 of Regulation 1238/2013, or refer the case back to the General Court for a decision on the substance of the Application for annulment; and

— order the Council to pay the Appellant's costs.

Pleas in law and main arguments

The General Court committed an error in law in finding that Article 3 of Regulation 1238/2013 (1) is not severable from the remainder of that regulation. Changing the form of measures does not change the scope of the Regulation imposing them. The scope of antidumping measures is all imports from producers found to have engaged in injurious dumping, and their objective, regardless of the form, is to be adequate to remove the injury suffered by the EU producers. This scope is not changed by the annulment of Article 3.

The Contested Order violates the Appellant's right under Article 47 of the Charter of Fundamental Rights of the European Union as it denies the EU industry a legal remedy in trade defence cases against definitive measures which fail to respect the requirements of the Basic Regulation. In addition, the Contested Order violates the Appellant's right under Article 20 of the of the Charter of Fundamental Rights of the European Union by putting exporting producers in a better position than the EU industry, as the jurisprudence recognises their right of appeal.

(1) Council Implementing Regulation (EU) No 1238/2013 of 2 December 2013 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of crystalline silicon photovoltaic modules and key components (i.e. cells) originating in or consigned from the People's Republic of China

OJ L 325, p. 1
EN Official Journal of the European Union C 251/4

Request for a preliminary ruling from the Tribunal Superior de Justicia de la Comunidad Autónoma del País Vasco (Spain) lodged on 7 April 2016 — E v Subdelegación del Gobierno en Álava

(Case C-193/16)

(2016/C 251/05)

Language of the case: Spanish

Referring court

Tribunal Superior de Justicia de la Comunidad Autónoma del País Vasco

Parties to the main proceedings

Applicant/appellant: E

Defendant/respondent: Subdelegación del Gobierno en Álava

Question referred

In accordance with Article 27 [(1) and (2)] of Directive 2004/38/EC, (1) does the appellant, sentenced to 12 years’ imprisonment for repeated offences of child abuse, represent a genuine and present threat to public security, bearing in mind that he is detained in prison and, having served six years, has several years left to serve before being released?

(1) 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).
(b)

the remarks on the draft amending legislation indicate that the purpose of the abovementioned sentencing provisions is to clarify or introduce a prohibition on gaming offered online by gaming companies outside Denmark and directly targeting the Danish market, partly by prohibiting advertising for, inter alia, gaming offered online by gaming companies outside Denmark, inasmuch as the same remarks it is stated that there is no doubt that, under the rules prevailing before the amendments, gaming measures are unlawful if a gaming company outside Denmark makes use of sales channels in which the gaming device is actually physically sold within the borders of Denmark; there is, however, greater doubt as to whether gaming from outside Denmark aimed at gaming participants in Denmark but actually physically situated outside Denmark is also covered by the provision; and it is therefore necessary to have clarified whether those forms of gaming are covered. It is further apparent from the remarks that it is suggested to introduce an advertising ban on gaming, lotteries and betting which are not licensed under that law, and that the amendment complies with the current prohibition in Paragraph 12(3) of the Law on horserace betting (hestevæddeløbsloven) but is a clarification of Paragraph 10(4) of the [now repealed] Law on betting and lotteries (Tips- og lottoloven). The remarks further state that the purpose of the prohibition is to protect gaming providers holding a licence from the Danish authorities against competition from companies that do not hold such a licence and who therefore cannot lawfully offer or broker gaming in Denmark.
EN Official Journal of the European Union C 260/29

Request for a preliminary ruling from the Finanzgericht Düsseldorf (Germany) lodged on 9 May 2016 — Deichmann SE v Hauptzollamt Duisburg

(Case C-256/16)

(2016/C 260/36)

Language of the case: German

Referring court

Finanzgericht Düsseldorf

Parties to the main proceedings

Applicant: Deichmann SE

Defendant: Hauptzollamt Duisburg

Question referred

Is Commission Implementing Regulation (EU) 2016/223 (1) of 17 February 2016 establishing a procedure for assessing certain market economy treatment and individual treatment claims made by exporting producers from China and Vietnam, and implementing the judgment of the Court of Justice in Joined Cases C-659/13 and C-34/14 valid?

(1) OJ 2016 L 41, p. 3.
1.

Does the requirement in Articles 1(5) and 2(18) of Regulation (EU) 2015/751 (1) (‘the IFR’) that a three party payment card scheme issuing card-based payment instruments with a co-branding partner or through an agent, is considered to be a four party payment card scheme, apply only to the extent that the co-branding partner or agent acts as the ‘issuer’ within the meaning of Article 2(2) and recital (29) of the IFR (namely where that partner or agent has a contractual relationship with the payer, pursuant to which it contracts to provide the payer with a payment instrument to initiate and process the payer's card-based payment transactions)?
1.

May the conduct of a national authority, which finds that a tenderer for a contract with an estimated value of EUR 3 million does not satisfy the selection criterion relating to economic and financial standing, even though a sworn statement submitted by the tenderer and a declaration provided by its bank, certify that it will be able to draw on funds under a secured loan which can be used for any purpose up to a maximum amount exceeding the value of the contract, be considered compatible with the objective of Article 47, in particular Article 47(1)(a) and (4), of Directive 2004/18/EC (1) 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?
B.

In the event that it does apply, is it possible to conclude from Articles 5 and 6 of Decree-Law No 242-B/2006 the existence of an adhesion contract capable of falling within the scope of Article 3(1)(b) of the abovementioned directive in view of the fact that it is possible to adhere to or be released from that contract, depending on whether or not medicinal products are dispensed?
EN Official Journal of the European Union C 279/15

Request for a preliminary ruling from the Amtsgericht München (Germany) lodged on 2 May 2016 — Gesellschaft für musikalische Aufführungs- und mechanische Vervielfältigungsrechte, Bezirksdirektion Nürnberg (GEMA) v Josef Ebert

(Case C-252/16)

(2016/C 279/20)

Language of the case: German

Referring court

Amtsgericht München

Parties to the main proceedings

Applicant: Gesellschaft für musikalische Aufführungs- und mechanische Vervielfältigungsrechte, Bezirksdirektion Nürnberg (GEMA)

Defendant: Josef Ebert

By decision of 31 May 2016, the Court removed the case from the Court’s Register
4.

Is it compatible with Article 7(1) of Directive 2008/95/EC and Article 15(1) of Directive 2015/2436 and with Article 36 of the Treaty on the Functioning of the European Union for the proprietor A of a trade mark X of a Member State to oppose the import of products identified by the said trade mark if those products come from another Member State where a trade mark identical to X (Y) is recorded as registered by another proprietor B which markets the same and: — both proprietors A and B maintain intense commercial and economic relations, although there is no strict dependency regarding the joint exploitation of trade mark X; — both proprietors A and B maintain a co-ordinated trade mark strategy deliberately promoting vis-à-vis the relevant public an appearance or image of a single and global trade mark; or — both proprietors A and B maintain intense commercial and economic relations, although there is no strict dependency regarding the joint exploitation of the trade mark X and in addition they maintain a co-ordinated trade mark strategy deliberately promoting vis-à-vis the relevant public an appearance or image of a single and global trade mark?
Does Article 344 TFEU preclude the application of a provision in a bilateral investment protection agreement between Member States of the European Union (a so-called BIT internal to the European Union) under which an investor of a contracting State, in the event of a dispute concerning investments in the other contracting State, may bring proceedings against the latter State before an arbitration tribunal, where the investment protection agreement was concluded before one of the contracting States acceded to the European Union but the arbitration proceedings are not to be brought until after that date?

If Question 1 is to be answered in the negative:
1.

In the light of Article 5 of Directive 93/104/EC (1) of 23 November 1993, and Directive 2003/88/EC (2) of the European Parliament and of the Council of 4 November 2003, as well as Article 31 of the Charter of Fundamental Rights of the European Union, in the case of workers engaged in shift work and rotating rest periods, in an establishment that is open every day of the week but which does not have continuous 24-hour productive periods, must the compulsory day of rest that a worker is entitled to be granted in each period of seven days, that is, at the latest on the seventh day following six consecutive working days?