ddrg/super_eurlex huggingface dataset:
1.

Is Article 4(1) of Directive 2002/19/EC (1) of the European Parliament and of the Council of 7 March 2002 on access to, and interconnection of, electronic communications networks and associated facilities (Access Directive), when read in conjunction with recitals 5, 6 and 8 in the preamble to that directive and with Article 8 and Article 5 thereof, to be interpreted as meaning that: 1 (a) national legislation may provide, as in Paragraph 39(1) of the Finnish Communications Market Law, that any telecommunications operator has an obligation to negotiate on interconnection with another telecommunications operator and, if so, 1 (b) a national regulatory authority can take the view that the obligation to negotiate has not been complied with where a telecommunications operator which does not have significant market power has offered another operator interconnection under conditions which the authority regards as wholly unilateral and likely to hinder the emergence of a competitive market at the retail level, where they have hindered in practice the second operator from offering its customers the opportunity to transmit multimedia messages to end-users subscribed to the telecommunications operator's network and, if so, 1 (c) the national regulatory authority can in its decision require the aforementioned telecommunications operator, which therefore does not have significant market power, to negotiate in good faith on the interconnection of text and multi-media communications services between operators' systems in such a way that, in commercial negotiations, regard must be had to the objectives which interconnection seeks to achieve and negotiations must be based on the premiss that the operation of SMS and MMS services between operators' systems can be made subject to reasonable conditions so that users have the possibility of using telecommunications operators' communications services?
2.

If the answer to the first question is in the affirmative, this court further asks whether, in the case of negotiated procedures with publication of a contract notice, — having regard to the fact that Article 44(3) of Directive 2004/18/EC provides that ‘[i]n any event the number of candidates invited shall be sufficient to ensure genuine competition’ — the limitation of the number of suitable candidates should be interpreted as meaning that in the second stage — that of awarding the contract — there must invariably be a minimum number of candidates (three)?
5.

The authorities responsible for surveillance of the use of drift-nets do not have access to information on the location of fishing vessels gathered by the satellite vessel monitoring system (VMS) provided for in Article 3 of Regulation No 2847/93. It is apparent from an investigation carried out by the Commission that a significant number of fishing vessels are still not equipped with the satellite-tracking devices necessary for the proper functioning of the VMS. As regards the collection of data, the computerisation of logbooks, landing declarations and sales notes required under Regulation No 2847/93 and, a fortiori, the cross-analysis of those data with the information collected by the VMS, are far from being fully implemented.
1.

Should Article 49 EC be interpreted as meaning that, where a closed licensing system is applied in a Member State to the provision of services relating to games of chance, the application of that article precludes the competent authority of that Member State from prohibiting a service provider to whom a licence has already been granted in another Member State to provide those services via the internet from also offering those services via the internet in the first Member State?
2.

Must Article 5(2) of Council Directive 85/577/EEC of 20 December 1985 to protect the consumer in respect of contracts negotiated away from business premises be interpreted as meaning that it precludes a legal effect under national (judge-made) law within the meaning of Article 7 of the directive which states that, where a consumer becomes a member in a doorstep-selling situation, the consequence is that, in the event that the membership is cancelled, the consumer cancelling the membership has a claim against the partnership, association or cooperative, calculated at the time that the cancellation takes effect, to his severance balance, that is, a sum corresponding to the value of his interest in the partnership, association or cooperative at the time of retirement from membership, with the (possible) effect that, as a result of the economic development of the partnership, association or cooperative, he either gets back less than the value of his capital contribution or even finds himself exposed to payment obligations which, because the severance balance is negative, go beyond the loss of the capital contribution paid?
—

Declare that the Kingdom of Spain, by not adopting the laws, regulations and administrative provisions necessary to transpose Council Directive 2004/81/EC (1) of 29 April 2004 on the residence permit issued to third-country nationals who are victims of trafficking in human beings or who have been the subject of an action to facilitate illegal immigration, who cooperate with the competent authorities and, in any event, by not communicating those provisions to the Commission, has failed to fulfil its obligations under Article 17 of that directive;
1.

Does a restrictive national gaming policy which is aimed at channelling the propensity to gamble and which in fact contributes to the achievement of the objectives pursued by the national legislation in question, namely, the curbing of gambling addiction and the prevention of fraud, inasmuch as, by reason of the regulated offer of games of chance, participation in gambling activities occurs on a (much) more limited scale than would be the case if there were no national regulatory system, satisfy the condition set out in the case-law of the Court of Justice of the European Communities, particularly in the judgment in Case C-243/01 Gambelli and Others [2003] ECR I-13031, that such restrictions must limit betting activities in a consistent and systematic manner, even where the licence holder/s is/are permitted to make the games of chance which it/they offer/s attractive by introducing new games, to bring the games which it/they offer/s to the notice of a wide public by means of advertising and thereby to keep (potential) gamblers away from the unlawful offer of games of chance (see Joined Cases C-338/04, C-359/04 and C-360/04 Placanica and Others [2007] ECR I-1891, paragraph 55, in fine)?
1.

Does the principle of the freedom of movement for workers laid down in [Article 39 EC] preclude a provision of national law pursuant to which an espoir player who at the end of his training period signs a professional player's contract with a club of another Member State of the European Union may be ordered to pay damages?
EN Official Journal of the European Union C 236/10

Reference for a preliminary ruling from the Giudice di Pace di Ischia (Italy) lodged on 15 July 2008 — Rosalba Alassini v Telecom Italia SpA

(Case C-317/08)

(2008/C 236/15)

Language of the case: Italian

Referring court

Giudice di Pace di Ischia

Parties to the main proceedings

Applicant: Rosalba Alassini

Defendant: Telecom Italia SpA

Question referred

Do the Community rules in Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, Directive 2002/22/EC (1), Directive 1999/44/EC (2), Commission Recommendation 2001/310/EC (3) and Directive 1998/257/EC (4) have direct effect and must they be interpreted as meaning that disputes ‘in the area of electronic communications between end-users and operators concerning non-compliance with the rules on universal service and on the rights of end-users, as laid down in legislation, decisions of the Regulatory Authority, contractual terms and service charters’ (the disputes contemplated by Article 2 of Decision No 173/07/CONS of the Regulatory Authority) must not be made subject to a mandatory attempt at conciliation without which proceedings in that regard may not be brought before the courts, thus taking precedence over the rule laid down in Article 3(1) of Decision No 173/07/CONS?

(1) OJ L 108, p. 51.

(2) OJ L 171, p. 12.

(3) Commission Recommendation.

(4) Commission Recommendation.
EN Official Journal of the European Union C 260/10

Appeal brought on 30 July 2008 by WWF-UK Ltd against the order of the Court of First Instance (Eighth Chamber) delivered on 2 June 2008 in Case T-91/07, WWF-UK Ltd v Council of the European Union

(Case C-355/08 P)

(2008/C 260/18)

Language of the case: English

Parties

Appellant: WWF-UK Ltd (represented by: R. Stein, Solicitor, P. Sands and J. Simor, Barristers)

Other parties to the proceedings: Council of the European Union, Commission of the European Communities

Form of order sought

The applicant claims that the Court should:

— quash the Order of 5 June 2008 and declare WWF's application to the Court of First Instance (‘CFI’ ) admissible;

— order the Council and Commission to pay WWF's costs before this Court and the Court of First Instance.

Pleas in law and main arguments

1) The CFI wrongly held that WWF's entitlement as a member of the RAC to be involved in the decision making procedure and the obligation on the Council to consider its views prior to adoption of the relevant measures were not sufficient to distinguish it ‘individually’ for the purposes of Article 230 EC Treaty. The CFI wrongly considered that WWF did not have procedural rights, holding that these belonged solely to the RAC and not to its members.

2) The CFI erroneously considered that even assuming ‘standing’, judicial protection would not be aimed at safeguarding WWF's procedural rights and did not therefore require judicial protection. That is an incorrect approach to the question of standing. Providing ‘direct and individual’ concern can be shown, the Applicant is entitled to challenge the ‘legality of the relevant measure’, which is what WWF seeks to do in this case. WWF is not confined to challenging a failure in the procedure, as the CFI suggest.
EN Official Journal of the European Union C 247/6

Reference for a preliminary ruling from the Finanzgericht München (Germany) lodged on 8 July 2008 — Zino Davidoff SA v Bundesfinanzdirektion Südost

(Case C-302/08)

(2008/C 247/08)

Language of the case: German

Referring court

Finanzgericht München

Parties to the main proceedings

Applicant: Zino Davidoff SA

Defendant: Bundesfinanzdirektion Südost

Question referred

In the light of the accession of the European Community to the Madrid Protocol, is Article 5(4) of Council Regulation (EC) No 1383/2003 of 22 July 2003, concerning customs action against goods suspected of infringing certain intellectual property rights and the measures to be taken against goods found to have infringed such rights (1), to be interpreted as meaning that, despite the use of the term ‘Community trade mark’, marks with international registrations within the meaning of Article 146 et seq. of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark, as amended by Council Regulation (EC) No 1992/2003 of 27 October 2003, are also covered?

(1) OJ 2003 L 196, p. 7.
EN Official Journal of the European Union C 272/14

Action brought on 9 September 2008 — Commission of the European Communities v Kingdom of Spain

(Case C-392/08)

(2008/C 272/24)

Language of the case: Spanish

Parties

Applicant: Commission of the European Communities (represented by: S. Pardo Quintillán and A. Sipos, acting as Agents)

Defendant: Kingdom of Spain

Form of order sought

— Declare that, by failing to draw up external emergency plans for all establishments to which Article 9 of Council Directive 96/82/EC (1) of 9 December 1996 on the control of major-accident hazards involving dangerous substances applies, the Kingdom of Spain has failed to fulfil its obligations under Article 11(1)(c) of Directive 96/82/EC.

— order the Kingdom of Spain to pay the costs.

Pleas in law and main arguments

According to Article 2(1) of Directive 96/82/EC, Article 9 of the directive, the Directive is to apply to establishments where dangerous substances are present in quantities equal to or in excess of the quantities listed in Annex I, Parts 1 and 2, column 3.

Under Article 11(1)(c) of that directive, Member States are to ensure that, for all establishments to which Article 9 applies, the authorities designated for that purpose are to draw up an external emergency plan for the measures to be taken outside the establishment.

The objective of this application is to seek a declaration that by failing to draw up external emergency plans for all establishments to which Article 9 applies, the Kingdom of Spain has failed to fulfil its obligations under Article 11(1)(c) of Directive 96/82/EC.

(1) OJ 1996 L 10, p. 13.
2.

Whether the protective clause referred to in Article 7(2) of that Directive applies, in particular whether Article 7(2) of Directive 435/90/EEC of 23 July 1990 must be interpreted as meaning that a Member State may decide not to apply the exemption referred to in Article 5(1) of the Directive in the case that the State of residence of the parent company grants the latter a tax credit by virtue of a bilateral convention.
EN Official Journal of the European Union C 272/10

Reference for a preliminary ruling from the Sąd Rejonowy w Kościanie (Republic of Poland) lodged on 24 July 2008 — Criminal proceedings against Tomasz Rubach

(Case C-344/08)

(2008/C 272/17)

Language of the case: Polish

Referring court

Sąd Rejonowy w Kościanie

Parties to the main proceedings

Prosecuting authority: Prokuratura Rejonowa w Kościanie (District Prosecutor's Office, Kościan)

Defendant: Tomasz Rubach

Question referred

How should Article 8(5) of Council Regulation (EC) No 338/97 of 9 December 1996 on the protection of species of wild fauna and flora by regulating trade therein (1) be properly interpreted, that is to say, how, under Community law, may a keeper of animals listed in Annex B (which are not amphibians, reptiles, birds or mammals) prove satisfactorily that his specimens were acquired or introduced into the Community in accordance with the legislation in force with regard to wild fauna and flora in the case where the provisions of national law do not govern those matters?

(1) OJ L 61, 3.3.1997, p. 1.
EN Official Journal of the European Union C 301/18

Appeal brought on 16 September 2008 (by fax on 12 September 2008) by Audi AG against the judgment of the Court of First Instance (Fourth Chamber) delivered on 9 July 2008 in Case T-70/06 Audi AG v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-398/08 P)

(2008/C 301/32)

Language of the case: German

Parties

Appellant: Audi AG (represented by: S.O. Gillert and Dr F. Schiwek, Rechtsanwälte)

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

Form of order sought

— Set aside the judgment under appeal;

— Set aside the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market of 16 December 2005 in Case R 237/2005-2 in so far as it dismisses in part the appeal against the examiner's decision;

— Order the Office for Harmonisation in the Internal Market to pay the costs of proceedings before the Court of Justice, before the Court of First Instance and before the Board of Appeal.

Pleas in law and main arguments

Breach of Article 7(1)B of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark: The Court of First Instance — like the Board of Appeal — did not state sufficient reasons regarding the relevant public in each case. In view of the large number of goods and services to be covered by the trade mark applied for, it was not permissible to take a uniform view across the board.

Further, the Court of First Instance applied too strict a standard when considering distinctive character. The Court of First Instance disregarded the fact that even so-called advertising slogans are essentially word marks. It applied noticeably stricter requirements to establish distinctive character solely on the basis of the fact that in its view the trade mark applied for, ‘Vorsprung durch Technik’, was an advertising slogan.

Breach of Article 63 of Council Regulation No 40/94: The Court of First Instance confined itself to reviewing the decision of the Board of Appeal. New facts put forward by the parties, which were not already covered by the decision of the Board of Appeal were neither admitted nor taken into account in the decision. However, when considering distinctive character, the Court of First Instance referred to a document which was only submitted by the defendant with the defence. The finding that the trade mark applied for, ‘Vorsprung durch Technik’, was devoid of distinctive character was based essentially on the content of that document and the appraisal of that content by the Court of First Instance.
EN Official Journal of the European Union C 285/27

Action brought on 5 September 2008 — Commission of the European Communities v Grand Duchy of Luxembourg

(Case C-390/08)

(2008/C 285/45)

Language of the case: French

Parties

Applicant: Commission of the European Communities (represented by: U. Wölker and J.-P. Keppenne, Agents)

Defendant: Grand Duchy of Luxembourg

Form of order sought

— Declare that by failing to communicate the information required by Article 3(2) of Decision No 280/2004/EC of the European Parliament and of the Council of 11 February 2004 concerning a mechanism for monitoring Community greenhouse gas emissions and for implementing the Kyoto Protocol (1), read in conjunction with Articles 8, 9, 10 and 11 of Commission Decision No 166/2005/EC of 10 February 2005 laying down rules implementing Decision No 280/2004/EC of the European Parliament and of the Council concerning a mechanism for monitoring Community greenhouse gas emissions and for implementing the Kyoto Protocol (2), the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 3(2) of Decision No 280/2004/EC, read in conjunction with Articles 8, 9, 10 and 11 of Decision No 166/2005/EC;

— Order the Grand Duchy of Luxembourg to pay the costs.

Pleas in law and main arguments

Pursuant to Article 3(2) of Decision No 280/2004/EC, read in combination with Decision No 166/2005/EC, the Member States were required to communicate to the Commission, by 15 March 2005 and every two years thereafter information on the national measures adopted to limit and/or reduce greenhouse gas emissions and implement the Kyoto Protocol.

At the date on which the present action was brought, the defendant had not communicated the measures in question to the Commission.

(1) OJ 2004 L 49, p. 1.

(2) OJ 2005 L 55, p. 57.
If the reply to the first question is in the affirmative:

Is Rule 5 of the General Rules for the interpretation of the Combined Nomenclature to be interpreted as meaning that capsule casings containing the substances specified above are to be regarded as packing material?
1.

Is Article 5(1)(b) of Council Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (1) to be interpreted as meaning that contracts for the delivery of goods to be produced or manufactured are, notwithstanding specific obligations on the part of the customer with regard to the provision, fabrication and delivery of the components to be produced, including a guarantee of the quality of production, reliability of delivery and smooth administrative handling of the order, to be classified as a sale of goods (first indent), and not as provision of services (second indent)? What criteria are decisive for the distinction?
—

declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2005/65/EC of the European Parliament and of the Council of 26 October 2005 on enhancing port security (1), or in any event by failing to notify the Commission of the adoption of those measures, the Republic of Estonia has failed to fulfil its obligations under the directive;
—

declare that, by failing to adopt all the laws, regulations and administrative provisions necessary to comply with Directive 2005/14/EC (1) of the European Parliament and of the Council of 11 May 2005 amending Council Directives 72/166/EEC, 84/5/EEC and 90/232/EEC and Directive 2000/26/EC of the European Parliament and of the Council relating to insurance against civil liability in respect of the use of motor vehicles, or in any event by failing to notify those provisions to the Commission, the United Kingdom has failed to fulfil its obligations under Article 6 of the Directive.
EN Official Journal of the European Union C 327/9

Action brought on 17 September 2008 — Commission of the European Communities v Republic of Austria

(Case C-401/08)

(2008/C 327/15)

Language of the case: German

Parties

Applicant: Commission of the European Communities (represented by: B. Schima, A. Sipos, Agents)

Defendant: Republic of Austria

Form of order sought

— Declare that the Republic of Austria has failed to fulfil its obligations under Article 11(1)(c) of Council Directive 96/82/EC of 9 December 1996 on the control of major-accident hazards involving dangerous substances (1), because the competent authorities in Austria failed to draw up an external emergency plan for all establishments to which Article 9 of the directive applies;

— order the Republic of Austria to pay the costs.

Pleas in law and main arguments

Article 11(1)(c) of Directive 96/82/EC requires Member States to ensure that, for all establishments to which Article 9 applies, the authorities designated for that purpose by the Member State draw up an external emergency plan for the measures to be taken outside the establishment. Those external emergency plans must not only contain information on on-site and off-site mitigatory action, but must also contain arrangements for providing the public with information relating to the accident and the behaviour which it should adopt. Moreover, the external emergency plans must for example also contain information for the emergency services of other Member States in the event of a major accident with possible transboundary consequences.

The objective of this application is to seek a declaration that by failing to draw up external emergency plans for all establishments to which Article 9 applies, the Republic of Austria has failed to fulfil its obligations under Article 11(1)(c) of Directive 96/82/EC.

(1) OJ 1997 L 10, p. 13.
—

Does Directive 2004/73/EC comply with Framework Directive 67/548/EEC, in particular with point 4.2.3 of Annex VI to that directive, in so far as it classifies nPB as a category 2 substance which is toxic for reproduction (R60), first, without clear results in appropriate animal studies where toxic effects have been observed to provide a strong presumption that human exposure to the substance may result in developmental toxicity and, secondly, on the basis of tests in which toxicity was detected only in animals subjected to a concentration of 250 ppm, that is to say 11 times the maximum and 40 times the average of the concentration of nPB to which a person is exposed when handling the product?
—

a declaration that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2005/56/EC (1) of the European Parliament and of the Council of 26 October 2005 on cross-border mergers of limited liability companies or, in any case, by failing to communicate such provisions to the Commission, the Portuguese Republic has failed to fulfil its obligations under that directive;
—

declare that, by failing to adopt, within the prescribed period, the laws, regulations and administrative provisions necessary to comply with Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications (1) or, in any event, by failing to inform the Commission thereof, the French Republic has failed to fulfil its obligations under that Directive;