ddrg/super_eurlex huggingface dataset:
Official Journal of the European Union

Appeal brought on 20 September 2019 by Toshiba Samsung Storage Technology Corp., Toshiba Samsung Storage Technology Korea Corp. against the judgment of the General Court (Fifth Chamber) delivered on 12/07/2019 in Case T-8/16: Toshiba Samsung Storage Technology, Toshiba Samsung Storage Technology Korea v Commission

(Case C-700/19 P)

(2019/C 383/61)

Language of the case: English

Parties

Appellant: Toshiba Samsung Storage Technology Corp., Toshiba Samsung Storage Technology Korea Corp. (hereinafter refferd to as the appellants) (represented by: M. Bay, avvocato, J. Ruiz Calzado, abogado, A. Aresu, avvocato)

Other party to the proceedings: European Commission

Form of order sought

The appellants claim that the Court should:

— set aside the Judgment of the General Court under appeal;

— annul the Commission decision in case COMP/39.639 – Optical Disk Drives at issue in so far as it concerns the appellants;

— annul or reduce the amount of the fine imposed on the appellants in that decision;

— order the Commission to bear the entirety of the costs at first instance and on appeal; and

— make any other order as may be appropriate in the circumstances of the case.

Pleas in law and main arguments

In support of the appeal, the appellants rely on four pleas in law.

First plea in law, alleging errors in law as regards limbs one, two and three of the first plea at first instance, consisting of infringements of essential procedural requirements and of the rights of defence.

Second plea in law, alleging errors of law in stating the legal standard for the existence of a single and continuous infringement.

Third plea in law, alleging violation of the rights of defence and erroneous legal standard.

Fourth plea in law, alleging failure to comply with essential procedural requirements; full inadequacy of the statement of reasons supporting the rejection of the second plea, first part (lack of jurisdiction), at first instance; and errors in the legal test governing the admissibility of evidence.
Infringement, in the recovery procedure before the Secretary-General of the European Parliament, of the right to a fair trial (Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (‘ECHR’) and Article 47, second paragraph, of the Charter of Fundamental Rights of the European Union (‘the Charter’)), and the principles associated therewith (principle of inter partes proceedings, principle of equality of arms, and principle of the rights of the defence), in so far as the appellant did not have access to the Report of the European Anti-Fraud Office (OLAF) on which the decision was based, or to the evidence supporting that report. The appellant was also unable to exercise his right to be heard prior to the adoption of that decision, in breach of the provisions of Article 68(2) of the Decision of the Bureau of the Parliament concerning implementing measures for the Statute for Members of the European Parliament (‘the implementing measures’). The General Court erred, in paragraph 44 of its judgment, in relying on Article 11(4) of Regulation No 883/2013, since that article does not govern the recovery procedure before the Secretary-General, but rather the procedure before OLAF. In that context, in paragraph 45 of the judgment under appeal, the General Court incorrectly applied the case-law established in paragraph 35 of the judgment in IMG v Commission. In paragraph 48 of the judgment under appeal, the General Court gave a contra legem interpretation of Article 68(2) of the implementing measures, by equating the right to submit observations with the right to be heard. In paragraph 51 of the judgment under appeal, the General Court also misinterpreted Article 68 of the implementing measures, which governs the recovery procedure, in so far as the relevant rule does not give rise, for the appellant, to rights or obligations in relation to the submission of evidence in the procedure before the Secretary-General.
1.

Must Article 3(e) of Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC, (1) as amended by Directive 2009/29/EC of the European Parliament and of the Council of 23 April 2009, (2) be interpreted as including within the concept of ‘installation’ a situation such as that at issue, in which a co-generator built by the applicant on its industrial site to supply energy for its production facility was subsequently transferred, by a transfer of part of the business, to another company, a specialist in the energy sector, by a contract which provided, on the one hand, for (i) the installation co-generating electricity and heat to be transferred to the transferee as well as the certificates, documents, declarations of conformity, licences, concessions, authorisations and permits required for the operation of that installation and for the carrying out of activities, and for (ii) a surface right to be created in the transferee’s favour over an area of the site adequate and functional for the management and maintenance of the installation, in addition to rights of easement over the construction used for co-generation and an exclusive right over the surrounding area, and, on the other hand, for the transferee to supply the transferor for 12 years with energy produced by the installation, at prices set out in the contract?
1.

Does the transformation of the right of perpetual usufruct into immovable property ownership rights by operation of law, such as in the circumstances of the present case, constitute a supply of goods within the meaning of Article 14(2)(a) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, (1) read in conjunction with Article 2(1)(a) thereof, which is subject to value added tax (‘VAT’)?
3.

In the event that the answers to Questions 1 and 2 involve an interpretation which is such as to exclude the possibility of the Member States being able to regulate, at national level, the application per contract of Article 3 and Article 6(b) of Directive 2003/88/EC, where there are no provisions of national legislation governing the fact that the minimum daily rest and the maximum weekly working time are to relate to the worker (regardless of how many employment contracts are concluded with the same employer or with different employers), is a public institution of a Member State, which acts on behalf of the State, in a position to rely on the direct application of Article 3 and Article 6(b) of Directive 2003/88/EC and to penalise the employer for failure to observe the limits laid down by that directive as regards daily rest and/or the maximum weekly working time?
Appeal brought on 10 April 2019 by Et Djili Soy Dzhihangir Ibryam against the judgment of the General Court (Third Chamber) delivered on 12 February 2019 in Case T-231/18: Et Djili Soy Dzhihangir Ibryam v EUIPO - Lupu (Djili)

(Case C-293/19 P)

(2019/C 399/23)

Language of the case: English

Parties

Appellant: Et Djili Soy Dzhihangir Ibryam (represented by: C-R Romițan, lawyer)

Other party to the proceedings: European Union Intellectual Property Office

By order of 2 October 2019 the Court of Justice (Eighth Chamber) held that the appeal is dismissed as being, in part, manifestly inadmissible and, in part, manifestly unfounded and that Et Djili Soy Dzhihangir Ibryam shall bear its own costs.
Request for a preliminary ruling from the Spetsializiran nakazatelen sad (Bulgaria) lodged on 1 October 2019 — Criminal proceedings against HP

(Case C-724/19)

(2019/C 413/36)

Language of the case: Bulgarian

Referring court

Spetsializiran nakazatelen sad

Party to the main proceedings

HP

Question referred

Is a national law (Article 5(1)(1) of the Zakon za Evropeyskata zapoved za razsledvane (Law on the European investigation order; ‘the ZEZR’)), according to which, during the pre-trial stage of the criminal proceedings, the authority competent to issue a European investigation order for the provision of traffic and location data related to telecommunications is a public prosecutor, consistent with Article 2(c)(i) of Directive 2014/41 (1) and the principle of equivalence, provided that in an identical domestic case the competent authority is a judge?

Does recognition of that European investigation order by the competent authority of the executing State (public prosecutor or an investigating judge) replace the court order required under the law of the issuing State?

(1) Directive 2014/41/EU of the European Parliament and of the Council of 3 April 2014 regarding the European Investigation Order in criminal matters.

OJ 2014 L 130, p. 1.
Request for a preliminary ruling from the Tribunal Arbitral Tributário (Centro de Arbitragem Administrativa — CAAD) (Portugal) lodged on 20 September 2019 — Rádio Popular — Electrodomésticos, S.A. v Autoridade Tributária e Aduaneira

(Case C-695/19)

(2019/C 406/22)

Language of the case: Portuguese

Referring court

Tribunal Arbitral Tributário (Centro de Arbitragem Administrativa — CAAD)

Parties to the main proceedings

Applicant: Rádio Popular — Electrodomésticos, S.A.

Defendant: Autoridade Tributária e Aduaneira

Question referred

Do transactions involving intermediation in the sale of extended warranties on household electrical appliances, which are carried out by a taxable person under VAT law whose principal activity consists in the sale of household electrical appliances to consumers, constitute financial transactions, or are they to be treated as such pursuant to the principles of neutrality and non-distortion of competition, for the purposes of exclusion of the amount represented by them from the calculation of the deductible proportion, in accordance with Article 135(1)(b) and/or (c) of Council Directive 2006/112/EC of 28 November 2006? (1)

(1) Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1).
Request for a preliminary ruling from the Raad van State (Netherlands) lodged on 11 September 2019 — M, A, Staatssecretaris van Justitie en Veiligheid, other parties: Staatssecretaris van Justitie en Veiligheid, T

(Case C-673/19)

(2019/C 423/26)

Language of the case: Dutch

Referring court

Raad van State

Parties to the main proceedings

Applicants: M, A, Staatssecretaris van Justitie en Veiligheid

Defendants: Staatssecretaris van Justitie en Veiligheid, T

Question referred

Does 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 (OJ 2008 L 348), (1) in particular Articles 3, 4, 6 and 15 thereof, preclude a foreign national who enjoys international protection in another EU Member State from being detained under national law, given that the purpose of the detention is removal to that other Member State and, for that reason, an instruction to depart to the territory of that Member State had initially been issued but no return decision was subsequently taken?

(1) P. 98.
1.

Whether, under Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, in particular Articles 6(1) and 7(1) of the directive, the following ruling is compliant with EU law in order to ensure protection for consumers and users and compliance with the relevant case-law: the ruling by the Supreme Court in judgments 44 to 49 of 23 January 2019, which establishes the unambiguous criterion that a term in a consumer mortgage loan agreement that has not been negotiated and that stipulates that all the costs of arranging the mortgage are to be borne by the borrower is unfair, and which apportions the various expenses that are involved in the unfair term found to be void between the bank that imposed the term and the borrower, in order to limit repayments of amounts wrongly paid under national legislation. And whether, under Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, in particular Articles 6(1) and 7(1) of the directive, in order to ensure protection for consumers and users and compliance with the relevant case-law, it is compliant with EU law for the Supreme Court to adopt an inclusive interpretation of a term that is void for unfairness if the term can be severed and its effects abolished without affecting the continued existence of the mortgage loan agreement.
Request for a preliminary ruling from the Tribunal Superior de Justicia de Castilla-La Mancha (Spain) lodged on 4 October 2019 — KM v Subdelegación del Gobierno en Albacete

(Case C-731/19)

(2019/C 432/34)

Language of the case: Spanish

Referring court

Tribunal Superior de Justicia de Castilla-La Mancha

Parties to the main proceedings

Applicant: KM

Defendant: Subdelegación del Gobierno en Albacete

Question referred

Is an interpretation of the judgment of the Court of Justice of 23 April 2015 (Case C-38/14, Zaizoune) (1) as meaning the Spanish authorities and courts can directly apply Directive 2008/115/EC (2) to the detriment of the third-country national, thereby ignoring and disapplying more advantageous national penalty provisions, aggravating that national’s liability to a penalty and possibly disregarding the principle that criminal penalties must be defined by law, compatible with the case-law of the Court of Justice on the limits on the direct effect of directives, and should the fact that the Spanish legislation is not in conformity with that directive be resolved not in that way but by legislative reform or by the remedies provided by EU law whereby a State can be required properly to transpose directives?

(1) EU:C:2015:260.

(2) 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 (OJ 2008 L 348, p. 98).
3.

Is the objective and practical effect of the Framework Agreement undermined by the fact that, according to the case-law, Spanish law does not contain any effective measure to prevent and penalise abuse in respect of workers on temporary replacement contracts to cover vacant posts, in that: there is no limit on the maximum total duration of such contracts, which never become permanent contracts or non-permanent contracts of an indefinite duration, no matter how many years elapse; workers do not receive any compensation on the termination of their employment; the public authority is not required to justify the renewal of a temporary replacement contract where, for years, the vacant post is not included in the list of public vacancies or the selection process is delayed?
1.

Does Article 2 of Directive 2006/112 on the common system of value added tax preclude a transaction, (1) one whereby a taxpayer, as creditor, acquires immovable property in the context of an enforcement procedure and, sometime later, sells it in order to recover a sum of money which he had loaned, from being regarded as an economic activity in the form of the exploitation of tangible or intangible property for the purposes of obtaining income therefrom on a continuing basis?
2.

Must Article 2 of Directive 2008/94/EC of the European Parliament and of the Council of 22 October 2008 on the protection of employees in the event of the insolvency of their employer be interpreted as meaning that where an action for enforcement has been brought against an employer in connection with a judicially recognised claim for compensation for non-material damage suffered as a result of the death of an employee caused by an accident at work, but the claim is deemed irrecoverable in the enforcement proceedings on the ground that the employer has no funds at its disposal, the employer in question is also deemed insolvent?
2.

Did an airline use all means and alternatives at its disposal in order to limit the delay to a flight when, as a result of not being able to refuel at Lisbon airport for the aforementioned reason, it decided to refuel at an alternative close-by airport (Porto), and when, as a result of the delay caused by the late departure from Lisbon airport and the refuelling at another airport, which meant that the crew members of that aircraft no longer had any flight duty time available which, under the applicable legal provisions, would have enabled them to complete the flight that had been delayed, it resorted to entering into an operational leasing agreement (ACMI) with another airline in order to complete that flight?
2.

In the event that an air carrier may also be released from liability in the case of a reorganisation measure: Is it essential that the reorganisation measure had already been taken before the strike began, when it was not yet foreseeable which flight would ultimately be affected by the strike action, or is exculpation possible also if the flight schedule was reorganised only during or after the strike and it was already established that the flight at issue was not directly affected by the strike?
Action brought on 8 November 2019 — European Commission v Hungary

(Case C-821/19)

(2020/C 19/36)

Language of the case: Hungarian

Parties

Applicant: European Commission (represented by: M. Condou-Durande, J. Tomkin and A. Tokár, Agents)

Defendant: Hungary

Form of order sought

The Commission claims that the Court of Justice should:

(a) declare that: — by adding a new ground of inadmissibility of asylum applications to those expressly established in Directive 2013/32/EU in relation to the inadmissibility of asylum applications, Hungary has failed to fulfil its obligations under Article 33(2) of that directive; — by adopting measures which criminalise organising activity carried out in order to enable asylum proceedings to be brought in respect of persons who do not meet the criteria established in national asylum law, and which prescribe the adoption of restrictive measures with regard to persons accused or convicted of such an offence, Hungary has failed to fulfil its obligations under Article 8(2), Article 12(1)(c) and Article 22(1) of Directive 2013/32/EU, and under Article 10(4) of Directive 2013/33/EU; and

(b) order Hungary to pay the costs.

Pleas in law and main arguments

Since the sudden increase in the number of asylum applications in 2015, Hungary has amended its asylum system a number of times. In 2018, substantive amendments were made to Hungarian legislation on the right to asylum. On 20 June 2018, the Hungarian Parliament passed the az egyes törvényeknek a jogellenes bevándorlás elleni intézkedésekkel kapcsolatos módosításáról szóló, 2018. Évi VI. törvény (Law VI of 2018, amending certain laws in relation to measures against illegal immigration) and the seventh amendment to the Hungarian Constitution. That set of legislative measures is also known as the ‘Stop Soros’ Law. Those amendments further restricted the range of persons eligible for asylum, given that, in accordance with the amendment to the Law on the right to asylum, applications are to be deemed inadmissible when applicants have arrived in the territory of Hungary via a country in which they have not been exposed to persecution or faced the direct threat of persecution. The Büntető Törvénykönyv (Criminal Code) was also amended in the same vein. It thus criminalised organising activity aimed at making it possible for asylum proceedings to be brought for persons who are not persecuted on grounds of race, nationality, membership of a particular social group, religious belief or political opinion, or who do not have a well-founded fear of direct persecution in their country of origin, country of habitual residence, or other country via which they arrived [in Hungary].

Taking the view that the legislation adopted in 2018 is contrary to EU law, the Commission initiated an infringement procedure against Hungary. Given that Hungary’s contentions during the earlier administrative procedure have not dispelled the Commission’s doubts, the latter has decided to bring the matter before the Court of Justice.
2.

In the event that this is answered in the affirmative: Is it contrary to the principles of neutrality and equal treatment in the internal market if a pharmacy in the national territory is able to reduce the taxable amount, but a pharmacy which supplies the statutory health insurance fund by means of an intra-Community, tax-exempt supply from another Member State is not able to do so?
2.

Can the recognition of an organisation within the meaning of Article 132(1)(i) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax as an organisation having objects similar to those of bodies governed by public law that have as their aim the provision of children’s or young people’s education, school or university education, vocational training or retraining result from the fact that the tuition provided by that organisation enables participants to learn a fundamental ability (in this case: swimming)?
—

order the Kingdom of Belgium to pay a minimum lump sum of EUR 2 029 000 or, in the event that the amount of that minimum lump sum is exceeded, of a daily lump sum of EUR 4 905.90 from the date of delivery of the judgment in Case C-110/17, referred to above, until the date of delivery of the judgment in the present case or until the date of compliance with the judgment delivered in Case C-110/17, referred to above, whichever is the earlier, payable to an account specified by the Commission;