ddrg/super_eurlex huggingface dataset:
3.

The subject matter of the action before the Board of Appeal was limited to determining whether or not Inditex’s use of the trade mark ZARA for the services of transport and product distribution provided by that company to its franchisees could be regarded as external use, as opposed to internal use within the company, and, consequently, whether or not it could be regarded as genuine use. Accordingly, the use in itself of the trade mark ZARA in respect of the transport and distribution services provided by the holder of the mark was an undisputed fact and was not in question before OHIM.
1.

The Hungarian Government submits that Article 78(3) TFEU does not provide the Council with an adequate legal basis for the adoption of the contested decision. Article 78(3) TFEU does not empower the Council to adopt a legislative act, nor, therefore, to adopt the measures established in the contested decision, specifically those which involve a binding exception in respect of a legislative act, in the present case Regulation (EU) No 604/2013. (2) In view of its content, the contested decision constitutes a legislative act — given that it establishes an exception in respect of Regulation No 604/2013 — with the result it could not be adopted on the basis of Article 78(3) TFEU, which solely empowers the Council to adopt acts through a non-legislative procedure, that is to say, non-legislative acts. In the event that, despite the foregoing, it is held that Article 78(3) TFEU may constitute the basis for the adoption of a legal act which entails an exception in respect of a legislative act, the Hungarian Government submits that that exception cannot go so far as to affect the essence of that legislative act and render nugatory its fundamental provisions, as the contested decision does.
EN Official Journal of the European Union C 38/45

Action brought on 3 December 2015 — Republic of Austria v Federal Republic of Germany

(Case C-648/15)

(2016/C 038/57)

Language of the case: German

Parties

Applicant: Republic of Austria (represented by: C. Pesendorfer, acting as Agent)

Defendant: Federal Republic of Germany

Form of order sought

Action under Article 25(5) of the Convention concluded between the Republic of Austria and the Federal Republic of Germany concerning the avoidance of double taxation with respect to taxes on income and capital (öBGBl III 182/2002, dBGBl II 2002, 735, and dBStBl I 2002, 584) (‘the German-Austrian Double Taxation Convention’), read in conjunction with Article 273 TFEU, concerning discrepancies between the Republic of Austria and the Federal Republic of Germany in their views on the interpretation and application of Article 11 of that Convention.

The applicant claims that the Court should:

— hold that income from the profit-participation certificates (Genussscheine) at issue in this case is not to be characterised as ‘profit participation claims’ within the meaning of Article 11(2) of the German-Austrian Double Taxation Convention. Consequently, under Article 11(1) of that Convention, Austria, as the State of the seat of Bank Austria, has the exclusive right to tax the income from such certificates;

— order the Federal Republic of Germany to refrain from taxing Bank Austria’s income from the certificates at issue and to reimburse the taxes already levied on that income;

— order the Federal Republic of Germany to pay the costs.

Pleas in law and main arguments

The Republic of Austria objects to the Federal Republic of Germany characterising the income at issue as interest with a ‘profit participation’ element within the meaning of Article 11(2) of the German-Austrian Double Taxation Convention. While the return is generally calculated according to a fixed percentage, it is, in the view of the Federal Republic of Germany, profit-dependent in being subject to a condition that there is an adequate amount of profit.

Contrary to the position of the Federal Republic of Germany, the Republic of Austria takes the view that the certificates at issue confer solely an entitlement to interest calculated on the basis of a fixed percentage of the nominal value. This interpretation is, first of all, consistent with the meaning in everyday usage; it is also confirmed by a comparison with the financial instruments referred to, by way of example, in Article 11(2) of the German-Austrian Double Taxation Convention.

In the present case, according to the Republic of Austria, the creditor accordingly merely grants the debtor an additional time for payment, since particularly during its lifespan a profit-participation certificate affords a right to defer payment to a later time. In effect, such certificates therefore correspond to fixed-interest negotiable instruments to which a certain risk of loss is attached.
2.

TV2 further submits that that part of the judgment under appeal which deals with the merits and rejects the second part of TV2’s alternative claim is vitiated by an error of law because it is contrary to fundamental procedural principles. TV2 puts forward the following principal arguments in support thereof: — In its statement in defence the Commission had stated it agreed with TV2 on the point that the licence fee revenue which TV2 passed on to the regions in the period 1997-2002 did not constitute State aid in favour of TV2. The General Court thereby ruled ultra petita because it dealt with and rejected the second part of TV2’s alternative claim. The judgment under appeal is therefore vitiated by an error of law. — The General Court further ruled on the merits on the basis of its own line of argument. The General Court’s considerations as set out in paragraphs 165-174 of the judgment under appeal have not been argued at any point by either TV2 or the Commission; nor are they to be found in the contested decision. The General Court thereby exceeded the limits of its judicial review. — At the same time the General Court infringed the principle of the right to a fair hearing: see Article 47 of the Charter of Fundamental Rights of the European Union in that it based its decision on pleas and arguments on which the parties to the case had not submitted pleadings.
EN Official Journal of the European Union C 48/18

Request for a preliminary ruling from the Cour de cassation (France) lodged on 23 November 2015 — A-Rosa Flussschiff GmbH v Union de recouvrement des cotisations de sécurité sociale et d’allocations familiales d’Alsace (URSSAF), Sozialversicherunganstalt des Kantons Graubünden (Social Insurance Institution for the Canton of Graubünden)

(Case C-620/15)

(2016/C 048/24)

Language of the case: French

Referring court

Cour de cassation

Parties to the main proceedings

Appellant: A-Rosa Flussschiff GmbH

Respondents: Union de recouvrement des cotisations de sécurité sociale et d’allocations familiales d’Alsace (URSSAF), Sozialversicherunganstalt des Kantons Graubünden (Social Insurance Institution for the Canton of Graubünden)

Question referred

Is the effect of an E 101 certificate issued, in accordance with Articles 11(1) and Article 12a(1a) of Regulation (EEC) No 574/72 of 21 March 1972 fixing the procedure for implementing Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons, to self-employed persons and to the members of their families moving within the Community, (1) by the institution designated by the competent authority of the Member State whose social security legislation remains applicable to the situation of the employee, binding, first, on the institutions and authorities of the host Member State and, secondly, on the courts of that Member State, where it is found that the conditions under which the employee carries out his activity clearly do not fall within the material scope of the exceptions set out in Article 14(1) and (2) of Regulation No 1408/71? (2)

(1) OJ 1972 L 74, p. 1.

(2) OJ 1971 L 149, p. 2.
—

Case C–357/15 is removed from the Register of the Court.
2.

If the answer to the first question is in the negative, does Article 5, in conjunction with Article 2, of Council Directive 2011/64/EU on the structure and rates of excise duty applied to manufactured tobacco (codification) preclude national legislation of a Member State which extends excise duty on manufactured tobacco to tobacco that is not referred to in Articles 2 and 5 of Council Directive 2011/64/EU on the structure and rates of excise duty applied to manufactured tobacco (codification) and that, while not intended for smoking, can be smoked (is capable of and appropriate for being smoked) and has been prepared for sale to the final consumer?
EN Official Journal of the European Union C 90/5

Request for a preliminary ruling from the Handelsgericht Wien (Austria) lodged on 2 December 2015 — Verwertungsgesellschaft Rundfunk GmbH v Hettegger Hotel Edelweiss GmbH

(Case C-641/15)

(2016/C 090/07)

Language of the case: German

Referring court

Handelsgericht Wien

Parties to the main proceedings

Applicant: Verwertungsgesellschaft Rundfunk GmbH

Defendant: Hettegger Hotel Edelweiss GmbH

Question referred

Is the condition of ‘against [payment] of an entrance fee’ laid down in Article 8(3) of Directive 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental right and lending right and on certain rights related to copyright in the field of intellectual property (1) satisfied where;

— through the TV set made available in each room of a hotel, the hotel operator provides access to the signal for various television and radio channels (‘hotel room TV’), and

— for use of the room (including hotel room TV), the hotel operator charges a fee per room per night (room rate) which also includes use of the TV set and the television and radio channels to which access is thereby provided?

(1) OJ 2006 L 376, p. 28.
3.

In the light of the evolution of EU law regulating the market for medicinal products, must the concept of ‘clearly defined therapeutic or prophylactic characteristics’ which, according to the settled case-law of the Court of Justice of the European Union, is a condition for classification in Chapter 30, be interpreted as corresponding to the definition of medicinal product within the meaning of the provisions of EU law relating to medicinal products for human use?
EN Official Journal of the European Union C 191/3

Request for a preliminary ruling from the Sąd Rejonowy w Koninie (Poland) lodged on 15 October 2015 — Euro Bank SA v Marek Łopaciński

(Case C-537/15)

(2016/C 191/05)

Language of the case: Polish

Referring court

Sąd Rejonowy w Koninie

Parties to the main proceedings

Applicant: Euro Bank SA

Defendant: Marek Łopaciński

Questions referred

By order of the Court (Tenth Chamber) of 3 March 2016 it was decided that there was no need to proceed to judgment in the case.
EN Official Journal of the European Union C 326/7

Appeal brought on 19 November 2015 by Eugenia Mocek, Jadwiga Wenta, KAJMAN Firma Handlowo-Usługowo-Produkcyjna against the judgment of the General Court (First Chamber) delivered on 30 September 2015 in Case T-364/13: Eugenia Mocek, Jadwiga Wenta, KAJMAN Firma Handlowo-Usługowo-Produkcyjna v EUIPO

(Case C-619/15 P)

(2016/C 326/11)

Language of the case: English

Parties

Appellant: Eugenia Mocek, Jadwiga Wenta, KAJMAN Firma Handlowo-Usługowo-Produkcyjna (represented by: B. Szczepaniak, radca prawny)

Other party to the proceedings: European Union Intellectual Property Office (EUIPO)

By order of 21 June 2016 the Court of Justice (Eight Chamber) held that the appeal was inadmissible.
EN Official Journal of the European Union C 270/14

Appeal brought on 7 September 2015 by Nanu-Nana Joachim Hoepp GmbH & Co. KG against the judgment of the General Court (Eighth Chamber) delivered on 9 July 2015 in Case T-89/11: Nanu-Nana Joachim Hoepp v EUIPO

(Case C-479/15 P)

(2016/C 270/20)

Language of the case: English

Parties

Appellant: Nanu-Nana Joachim Hoepp GmbH & Co. KG (represented by: A. Nordemann, Rechtsanwalt, M.C. Maier, Rechtsanwalt)

Other party to the proceedings: European Union Intellectual Property Office (EUIPO)

By order of 14 April 2016 the Court (Sixth Chamber) held that the appeal was inadmissible.
EN Official Journal of the European Union C 106/26

Appeal brought on 13 January 2016 by Al-Bashir Mohammed Al-Faqih, Ghunia Abdrabbah, Taher Nasuf, Sanabel Relief Agency Ltd against the judgment of the General Court (Seventh Chamber) delivered on 28 October 2015 in Case T-134/11: Al-Bashir Mohammed Al-Faqih, Ghunia Abdrabbah, Taher Nasuf, Sanabel Relief Agency Ltd v European Commission

(Case C-19/16 P)

(2016/C 106/28)

Language of the case: English

Parties

Appellants: Al-Bashir Mohammed Al-Faqih, Ghunia Abdrabbah, Taher Nasuf, Sanabel Relief Agency Ltd (represented by: N. Garcia-Lora, Solicitor, E. Grieves, Barrister)

Other parties to the proceedings: European Commission, Council of the European Union, United Kingdom of Great Britain and Northern Ireland

Form of order sought

The appellants claim that the Court should:

— set aside the contested decision of 28 October 2015

— substitute its own decision and annul the contested measures

— order the Commission, the Council and the United Kingdom to pay the costs in the General Court and in the Court of Justice proceedings.

Pleas in law and main arguments

This appeal advances 4 pleas in law.

Ground 1 disputes the Court's decision that the challenges to the substantive decision to list the first three applicants were not properly raised before the Court. The Court failed to properly characterise pleading IV as a challenge to the Commission's assessment of the facts. The Court failed to take into account the applicants' observations, which ought to have been considered because a) the Court had requested them, b) they had been served prior to the defendant lodging its defence and c) the applicants had always indicated that they wished to challenge the assessment of facts. The Court's approach was inconsistent with Ayadi v Commission T-527/09 (14.4.15)

Ground 2 challenges the Court's decision on the basis that it failed to apply the binding authority of Kadi II. The Court failed to determine for itself whether or not the allegations in the statement of reasons were well founded.

Ground 3 challenges the Court's finding that the Commission conducted a careful and independent analysis of the justification for listing. The Court's finding that the Commission did conduct such an analysis was unsustainable in light of the facts of the case and previous judicial findings in other similar cases.

Ground 4 challenges the Court's decision that Sanabel had no legal standing on the basis that the court erred in its understanding of the law. Sanabel's legal standing is not contingent upon parallel characterisations under domestic law, but upon whether it is deemed capable of being so designated.
EN Official Journal of the European Union C 70/32

Corrigendum to the Notice in the Official Journal in Case C-561/16

( Official Journal of the European Union C 22 of 23 January 2017 )

(2017/C 070/42)

The Notice in Case C-561/16 Saras Energía should read as follows:

Referring court

Tribunal Supremo

Parties to the main proceedings

Applicant: Saras Energía S.A.

Defendant: Administración del Estado

Other parties: Endesa SA, Endesa Energía SA, Endesa Energía XXI SLU, Viesgo Infraestructuras Energéticas SL, Hidroeléctrica del Cantábrico SAU, Nexus Energía SA, Nexus Renovables SLU, Engie España SL, Villar Mir Energía SL, Energya VM Gestión de Energía y Estaciones de Servicio de Guipúzcoa SA.

Questions referred

(1) Is legislation of a Member State establishing a national energy efficiency obligation scheme whose main method of compliance consists in an annual financial contribution to an Energy Efficiency National Fund established under the provisions of Article 20(4) of Directive 2012/27/EU (1) compatible with Article 7(1) and (9) of that directive?

(2) Is national legislation which provides for the possibility of fulfilling the energy savings obligations through the accreditation of savings as an alternative to the financial contribution to the Energy Efficiency National Fund compatible with Articles 7(1) and 20(6) of Directive 2012/27/EU?

(3) If the above question is answered in the affirmative, is the provision of that alternative possibility for the fulfilment of the energy savings obligations compatible with the abovementioned Articles 7(1) and 20(6) of the directive when its actual existence depends on whether the Government establishes it on a discretionary basis through legislation? In that respect, is such legislation compatible when the Government does not implement that alternative?

(4) Is a national scheme that regards as parties subject to energy saving obligations only gas and electricity retail companies and wholesalers of petroleum products and liquefied petroleum gases, but not gas and electricity distributors or retailers of petroleum products and liquefied petroleum gases, compatible with Article 7(1) and (4) of the directive?

(5) If the answer to the above question is in the affirmative, is the definition of gas and electricity retail companies and wholesalers of petroleum products and liquefied petroleum gases as ‘obligated parties’, without the reasons being determined for gas and electricity distributors and retailers of petroleum products and liquefied petroleum gases not being so defined, compatible with the abovementioned provisions of Article 7?

(1) Directive 2012/27/EU of the European Parliament and of the Council of 25 October 2012 on energy efficiency, amending Directives 2009/125/EC and 2010/30/EU and repealing Directives 2004/8/EC and 2006/32/EC (OJ L 315, 14.11.2012, p. 1).
EN Official Journal of the European Union C 111/10

Request for a preliminary ruling from the Augstākā tiesa (Latvia) lodged on 8 January 2016 — Valsts policijas Rīgas reģiona pārvaldes Kārtības policijas pārvalde v Rīgas pašvaldības SIA ‘Rīgas satiksme’

(Case C-13/16)

(2016/C 111/13)

Language of the case: Latvian

Referring court

Augstākā tiesa

Parties to the main proceedings

Appellant: Valsts policijas Rīgas reģiona pārvaldes Kārtības policijas pārvalde

Respondent: Rīgas pašvaldības SIA ‘Rīgas satiksme’

Question referred

Must the phrase ‘is necessary for the purposes of the legitimate interests pursued by the … third party or parties to whom the data are disclosed’, in Article 7(f) of Directive 95/46/EC (1) of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, be interpreted as meaning that the National Police must disclose to Rīgas satiksme the personal data sought by the latter which are necessary in order for civil proceedings to be initiated? Is the fact that, as the documents in the case file indicate, the taxi passenger whose data is sought by the Rīgas satiksme was a minor at the time of the accident relevant to the answer to that question?

(1) OJ 1995 L 281, p. 31.
1.

a) Is all business information communicated to the supervisory authority by the supervised entity covered by the term ‘confidential information’ within the meaning of the second sentence of Article 54(1) of Directive 2004/39/EC (1) of the European Parliament and of the Council of 21 April 2004 on markets in financial instruments amending Council Directives 85/611/EEC and 93/6/EEC and Directive 2000/12/EC of the European Parliament and of the Council and repealing Council Directive 93/22/EEC (OJ 2004 L 145, p. 1; ‘Directive 2004/39/EC’), and therefore the obligation of professional secrecy in accordance with the first sentence of Article 54(1) of Directive 2004/39/EC, independently of any further conditions? b) Does ‘prudential secrecy’, as a component of professional secrecy within the meaning of the first sentence of Article 54(1) of Directive 2004/39/EC, independently of any further conditions, cover all statements by the supervisory authority contained in the files, including its correspondence with other entities? If questions a) or b) are answered in the negative: c) Must the provision on professional secrecy in Article 54(1) of Directive 2004/39/EC be interpreted as meaning that, as regards classification of information as confidential, aa) the relevant factor is whether the information is by its nature covered by the obligation of professional secrecy or access to the information could actually and specifically undermine the interest served by confidentiality, or bb) account must be taken of other circumstances under which the information is covered by the obligation of professional secrecy, or cc) in respect of business information of the supervised institution held in its files and related documentation of its own, the supervisory authority may rely on a rebuttable presumption that this information concerns business or prudential secrets?
4.

Does it follow from subparagraph 3(b) and subparagraph 4 of Article 795(1) and subparagraph 4 of Article 795(1) in conjunction with Article 796e(1)(b) of Commission Regulation No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code that the assessment [regarding the existence] of sufficient evidence under Article 796da(4) of that regulation by the relevant competent customs authority, in the circumstances at issue in the main proceedings, is binding and not subject to review by the customs authority competent to issue a retrospective customs declaration within the meaning of the first provision?
EN Official Journal of the European Union C 145/21

Request for a preliminary ruling from the Juzgado Contencioso-Administrativo No 4 de Madrid (Spain) lodged on 10 February 2016 — Congregación de Escuelas Pías Provincia Betania v Ayuntamiento de Getafe

(Case C-74/16)

(2016/C 145/27)

Language of the case: Spanish

Referring court

Juzgado Contencioso-Administrativo No 4 de Madrid

Parties to the main proceedings

Applicant: Congregación de Escuelas Pías Provincia Betania

Defendant: Ayuntamiento de Getafe

Question referred

Is the exemption of the Catholic Church from the Tax on Constructions, Installations and Works in respect of work to buildings intended to be used for economic activities that do not have a strictly religious purpose contrary to Article 107(1) of the Treaty on the Functioning of the European Union?
3.

For the purposes of Article 8(2) of Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations, (3) how is the place ‘in which the act of infringement was committed’ to be determined in cases in which the infringer a) offers goods that infringe a Community design on a website and that website is also directed at Member States other than the one in which the person damaged by the infringement is domiciled, and/or b) has goods that infringe a Community design shipped to a Member State other than the one in which it is domiciled? Is Article 15(a) and (g) of Regulation No 864/2007 to be interpreted as meaning that the law determined in this manner is also applicable to participatory acts of other persons?
3.

Does it make any difference in this regard whether the continuation of the undertaking is the primary objective of the pre-pack, or whether the (prospective) insolvency administrator’s primary objective with the pre-pack and the sale of the assets in the form of a ‘going concern’ immediately after the insolvency is to maximise the proceeds for all of the creditors, or that, in the context of the pre-pack, consensus on the transfer of assets (continuation of the undertaking) is achieved before the insolvency and its implementation is formalised and/or effected after the insolvency? And how should the matter be viewed if it is sought to secure both the continuation of the undertaking and the maximisation of proceeds?