ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 207/19

Appeal brought on 29 April 2013 by Principessa (in liquidation) against the order of the General Court (Fourth Chamber) of 20 February 2013 in Joined Cases T-278/00 to T-280/00, T-282/00 to T-286/00 and T-288/00 to T-295/00 Albergo Quattro Fontane and Others v Commission

(Case C-233/13 P)

2013/C 207/31

Language of the case: Italian

Parties

Appellant: Principessa (in liquidation) (represented by: A. Bianchini and F. Busetto, avvocati)

Other parties to the proceedings: European Commission, Comitato ‘Venezia vuole vivere’

Form of order sought

— Set aside the order of the General Court under appeal

— Uphold the forms of order sought at first instance and, accordingly, — annul, in so far as is reasonable and in so far as it concerns the appellant, European Commission Decision No 2000/394/EC of 25 November 1999 on aid to firms in Venice and Chioggia by way of relief from social security contributions under Laws Nos 30/1997 and 206/1995; — in the alternative, annul that decision in so far as it imposes an obligation to recover the relief granted and in so far as it requires interest to be added to the amount of relief to be recovered for the periods taken into consideration in the judgment;

— order the Commission to pay the costs incurred both at first instance and on appeal.

Grounds of appeal and main arguments

In support of the appeal, the appellant raises nine grounds of appeal:

First ground: the General Court erred in not taking into consideration the fact that the measures in question did not confer any advantage upon their beneficiaries given their compensatory nature.

Second ground: the Court erred in not excluding, or at least assessing, the likelihood that the measures in question would affect competition and intra-Community trade.

Third ground: the Court erred in holding that the derogations in Article 87(2)(b) EC (now Article 107(2)(b) TFEU) and Article 87(3)(b) EC (now Article 107(3)(b) TFEU) were inapplicable.

Fourth ground: the Court erred in holding that the derogation in Article 87(3)(c) EC (now Article 107(3)(c) TFEU) was inapplicable.

Fifth ground: the Court erred in holding that the derogations in Article 87(3)(d) and (e) EC (now Article 107(3)(d) and (e) TFEU) were inapplicable.

Sixth ground: the Court erred in holding that the derogation in Article 86(2) EC (now Article 106(2) TFEU) was inapplicable.

Seventh ground: the Court erred in not recognising the existence of the aid, thus infringing Article 88(3) EC (now Article 108(3) TFEU) and Article 15 of Regulation No 659/1999. (1)

Eighth ground: the Court erred in finding that Article 14(1) of Regulation No 659/1999 did not apply to the recovery order.

Ninth ground: the Court erred in finding that Article 14(1) of Regulation No 659/1999 did not apply to the addition of interest.

(1) Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ 1999 L 83, p. 1).
1.

Must the concept of ‘medicament’ within the meaning of heading 3004 of the Combined Nomenclature be interpreted as also including food preparations such as the products at issue, which are intended exclusively to be administered enterally (by means of a stomach tube) under medical supervision to persons who are undergoing medical treatment for a disease or ailment and who have the product administered to them as part of the control of that disease or ailment in order to control or prevent malnutrition?
EN Official Journal of the European Union C 207/27

Appeal brought on 8 May 2013 by Peter Schönberger against the judgment of the General Court (Sixth Chamber) delivered on 7 March 2013 in Case T-186/11 Peter Schönberger v European Parliament

(Case C-261/13 P)

2013/C 207/44

Language of the case: German

Parties

Appellant: Peter Schönberger (represented by: O. Mader, Rechtsanwalt)

Other party to the proceedings: European Parliament

Form of order sought

— Set aside the judgment of the General Court of 7 March 2013 in Case T-186/11;

— Uphold the application made by the appellant at first instance. Annul the respondent’s decision, communicated to the appellant by letter of 25 January 2011, by which the examination of his petition No 1188/2010 was terminated, without the Committee on Petitions examining the substance of the petition;

— Order the respondent to pay the costs.

Pleas in law and main arguments

In its presentation of the facts, the General Court suppressed the fact that the chairperson of the Committee on Petitions informed the appellant without giving further reasons that, although his petition was admissible, the Committee on Petitions could not examine its substance. Subsequently the General Court assumed — thereby distorting the facts — that the petition had been examined.

The General Court misrepresented the scope of protection of the fundamental right of petition by unlawfully presuming that it was limited to the examination of the admissibility of a petition. The scope of protection also however encompasses the right to a substantive examination of the petition and to a decision on the substance, if the petition is admissible (right to have case examined).

The General Court contradicted itself by holding that the Parliament’s failure to examine an admissible petition, unlike the failure to examine an inadmissible petition, does not produce any legal effects.

The General Court ruled in a manner contrary to its own case-law in Case T-308/07 Tegebauer. (1) It held in that case that the effectiveness of the right of petition can be impaired where the substance of a petition has not been examined.

The General Court overlooked the legal infringement constituted by the deficient reasoning of the European Parliament’s decision. It instead substituted its own reasoning for the deficient reasons given for the failure to deal with the petition.

The General Court failed to take due account of the fact that the appellant was denied the possibility of presenting his case to the Committee on Petitions in an undistorted way.

(1) Judgment of the General Court of 14 September 2011 (not yet published in the ECR).
(a)

‘establishment’, as referred to in Article 3(2), must be understood as referring to a branch of the debtor against which main insolvency proceedings have been opened and precludes, in the context of the concurrent winding-up of a number of companies belonging to a single group, secondary proceedings from being brought against those companies in the Member State in which their registered office is situated, on the ground that they possess legal personality?
Is there an inconsistency between part of the CN explanatory notes to [sub]headings 2707 99 91 and 2707 99 99 and note 2 to Chapter 27 of the HS, or is that note not exhaustive and to be regarded as merely illustrative?

In accordance with the CN explanatory notes to subheadings 2707 99 91 and 2707 99 99, ‘heavy oils (other than crude) obtained from the distillation of high-temperature coal tar’ are to be classified according to their characteristics in subheadings ‘… 2710 19 31 to 2710 19 99 …’ if they do not fulfil the four cumulative conditions set out in the CN explanatory notes to the former subheadings.

Pursuant to note 2 to Chapter 27 of the HS, the description ‘petroleum oils and oils obtained from bituminous minerals’ in heading 2710 is to be understood as also including similar oils, as well as those consisting mainly of mixed unsaturated hydrocarbons, obtained by any process, provided that the weight of the non-aromatic constituents exceeds that of the aromatic constituents.
EN Official Journal of the European Union C 252/22

Request for a preliminary ruling from the Cour d’appel de Mons (Belgium) lodged on 25 June 2013 — Ville de Mons v KPN Group Belgium SA

(Case C-346/13)

2013/C 252/35

Language of the case: French

Referring court

Cour d’appel de Mons

Parties to the main proceedings

Appellant: Ville de Mons

Respondent: KPN Group Belgium SA

Question referred

Does Article 13 of Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services [(the ‘Authorisation Directive’)] (1) preclude local authorities from introducing a tax, for budgetary or other reasons, on the economic activity of telecommunications operators, in the form of the presence on their territory of GSM pylons, masts or antennas used for the purposes of that activity?

(1) OJ 2002 L 108, p. 21.
EN Official Journal of the European Union C 252/20

Request for a preliminary ruling from the Rechtbank van eerste aanleg te Brussel (Belgium) lodged on 4 June 2013 — LVP NV v Belgische Staat

(Case C-306/13)

2013/C 252/30

Language of the case: Dutch

Referring court

Rechtbank van eerste aanleg te Brussel

Parties to the main proceedings

Applicant: LVP NV

Defendant: Belgische Staat

Question referred

Does Council Regulation (EC) No 1964/2005 of 29 November 2005 on the tariff rates for bananas (OJ 2002 L 316, p. 1), as applied by the European Union in the period from 1 January 2006 to 15 December 2009, infringe Article I; Article XIII(1); Article XIII(2)(d); Article XXVIII; and/or any other applicable article of the GATT 1994, individually or collectively, by introducing a tariff rate of EUR 176/tonne for bananas (GN Code 0803 00 19), contrary to the concessions for bananas negotiated by the EC, before a new negotiated agreement in that regard was concluded within the framework of the WTO?
—

Declare that, by refusing to grant the allowance by reason of birth provided for by Law No 592/2006 to persons entitled to it who reside in a Member State other than the Slovak Republic, the Slovak Republic has failed to fulfil its obligations under Articles 45 and 48 of the Treaty on the Functioning of the European Union and Article 7 of Regulation (EC) No 883/2004 (1) of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems.
1.6.

Is Article 3 of Directive 96/71, read in the light of Articles 56 and 57 TFEU, to be interpreted as meaning that the concept of minimum rates of pay covers basic hourly pay according to pay groups, job guarantee pay, holiday allowance, flat-rate daily allowance and compensation for daily travel-to-work time, as those terms of work are defined in a collective agreement declared universally applicable and falling within the scope of the annex to the directive? 1.6.1. Must Articles 56 [and 57] TFEU and/or Article 3 of Directive 96/71/EC be interpreted as precluding Member States in their capacity as ‘host State’ from imposing, in their national legislation (a universally applicable collective agreement), on service providers from other Member States an obligation to pay compensation for travelling time and a daily allowance to employees posted to their territory, taking into account that under the national legislation referred to all posted workers are regarded as travelling to work for the whole period of their posting, which entitles them to compensation for travelling time and daily allowances? 1.6.2. Must Articles 56 and 57 TFEU and/or Article 3 of Directive 96/71/EC be interpreted as not permitting the national court to decline to recognise a pay classification created and used in its home State by a company from another Member State, if that has been done? 1.6.3. Must Articles 56 and 57 TFEU and/or Article 3 of Directive 96/71/EC be interpreted as permitting an employer from another Member State to determine, validly and so as to bind the court of the country in which the work is performed, the categorisation of employees in pay groups in a situation in which a universally applicable collective agreement in the country in which the work is performed requires a categorisation into pay groups with a different end result to be made, or may the Member State which is the host State to which the employees of a service provider from another Member State have been posted lay down rules to be observed by the service provider on the criteria for categorisation of employees into pay groups? 1.6.4. When interpreting Article 3 of Directive 96/71/EC, read in the light of Articles 56 and 57 TFEU, are accommodation paid for by an employer who is obliged under a collective agreement mentioned in Question 6 and meal vouchers provided in accordance with a contract of employment by a service provider from another Member State to be regarded as compensation for expenses caused by being a posted worker or as part of the concept of minimum rates of pay within the meaning of Article 3(1)? 1.6.5. May Article 3 of Directive 96/71/EC in conjunction with Articles 56 and 57 TFEU be interpreted as meaning that a universally applicable collective agreement of the State in which the work is performed must be regarded as justified on the ground of requirements of public policy, when interpreting the question of job-based pay, compensation for travelling time and daily allowances?
4.

Is it appropriate to interpret the expression ‘in accordance with Union law and national laws and practices’ contained in Article 30 of the Charter of Fundamental Rights of the European Union as meaning that the Member State may define by legislation a special category of persons to whom it is not necessary to apply Article 30 of the Charter if their legal relationship is brought to an end?
4.

Does the framework agreement implemented by the directive preclude national legislation (in the present case the rules of the Navigation Code) that, in the event of the use of successive contracts (in such a way as to be considered abusive for the purposes of clause 5) excludes the transformation of those contracts into contracts of indefinite duration (as provided by Article 326 of the Navigation Code only in situations in which the seaman works continuously for more than a year and in situations in which the period between the ending of one contract and the drawing up of the following contract is no more than 60 days)?
1.

Where an employee resident in Member State A and who has been in insurable employment in that State for just short of three years spends the last six months of her insurable employment in Member State B, should that person’s subsequent claim for social security payments on account of illness be governed by (i) the law of Member State B for the purposes of Article 11(3)(a) of Regulation 883/2004/EC (1)? or, (ii) by the law of the Member State A where she is resident for the purposes of Article 11(3)(e)?
(a)

Is the wording of Article 3(3) of Directive 2001/23/EC, (1) according to which the ‘terms and conditions’ agreed in any collective agreement and applicable to the transferor must continue to be observed ‘on the same terms’ until the ‘date of termination or expiry of the collective agreement’, to be interpreted as also covering terms and conditions laid down by a collective agreement which have continuing effect indefinitely under national law, despite the termination of the collective agreement, until another collective agreement takes effect or the employees concerned have concluded new individual agreements?
1.

Is Article 5 of Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘the Unfair Commercial Practices Directive’) (1) …, to be interpreted as precluding, in respect of misleading commercial practices within the meaning of Article 5(4) of that directive, a separate examination of the criteria of Article 5(2)(a) of the directive?
EN Official Journal of the European Union C 298/3

Request for a preliminary ruling from the Curtea de Apel Cluj (Romania) lodged on 16 July 2013 — Vasiliki Balazs v Casa Județeană de Pensii Cluj

(Case C-401/13)

2013/C 298/03

Language of the case: Romanian

Referring court

Curtea de Apel Cluj

Parties to the main proceedings

Applicant at first instance: Vasiliki Balazs

Defendant at first instance: Casa Județeană de Pensii Cluj

Question referred

Is Article 7(2)(c) of Regulation (EEC) No 1408/71 (1) to be interpreted as including within its scope a bilateral agreement which two Member States entered into before the date on which that regulation became applicable and by which the two states agreed to the termination of obligations relating to social security benefits owed by one state to nationals of the other state who had been political refugees in the territory of the first state and who have been repatriated to the territory of the second state, in exchange for a payment by the first state of a lump sum for the payment of pensions and to cover periods during which social security contributions were paid in the first Member State?

(1) Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community (OJ, English Special Edition 1971 (II), p. 416).
1.

Must clause 5(1) of the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP annexed to Council Directive No 1999/70/EC (1) be interpreted as precluding the application of Article 4(1) infine and (11) of Law No 124 of 3 May 1999 adopting urgent provisions concerning school employees (Legge No 124, disposizioni urgenti in material di personale scolastico) which, after laying down rules on the allocation of annual replacements for ‘posts that are in fact vacant and free by 31 December’, goes on to provide that this is to be done by allocating annual replacements ‘pending the completion of competition procedures for the recruitment of permanent members of the teaching staff’ — a provision that permits fixed-term contracts to be used without a definite period being fixed for completing the competition, and in a clause that provides no right to compensation for damage?
2.

(a) If the answer to Question 1 is in the affirmative, does the fact that there has been an alteration as referred to in Question 1 have any bearing on the answer to the question whether exhaustion within the terms of Article 4(2) of the Copyright Directive is hindered or interrupted? (b) If the answer to Question 2(a) is in the affirmative, what criteria should then be applied in order to determine whether an alteration exists in respect of the form of the reproduction which hinders or interrupts exhaustion within the terms of Article 4(2) of the Copyright Directive? (c) Do those criteria leave room for the criterion developed in Netherlands national law to the effect that there is no longer any question of exhaustion on the sole ground that the reseller has given the reproductions a different form and has disseminated them among the public in that form (judgment of the Hoge Raad of 19 January 1979 in Poortvliet, NJ 1979/412)?
EN Official Journal of the European Union C 344/39

Request for a preliminary ruling from the Unabhängiger Verwaltungssenat in Tirol (Austria) lodged on 7 August 2013 — Ute Reindl, MPREIS Warenvertriebs GmbH v Bezirkshauptmannschaft Innsbruck

(Case C-443/13)

2013/C 344/69

Language of the case: German

Referring court

Unabhängiger Verwaltungssenat in Tirol

Parties to the main proceedings

Defendants and appellants: Ute Reindl, MPREIS Warenvertriebs GmbH

Applicant and respondent: Bezirkshauptmannschaft Innsbruck

Questions referred

1. Is Article 1 of Regulation (EC) No 1086/2011 (1) amending Regulation (EC) No 2073/2005 to be understood as meaning that fresh poultry meat must satisfy the microbiological criterion set out in Annex I, Chapter 1, Row 1.28, to Regulation (EC) No 2073/2005 (2) at all stages of distribution?

2. Are food business operators which are active at the food distribution stage also subject in full to the regime under Regulation (EC) No 2073/2005?

3. Must the microbiological criterion set out in Annex I, Chapter 1, Row 1.28, to Regulation (EC) No 2073/2005 also be observed at all stages of distribution by food business operators which are not involved in production (being involved exclusively at the distribution stage)?

(1) Commission Regulation (EU) No 1086/2011 of 27 October 2011 amending Annex II to Regulation (EC) No 2160/2003 of the European Parliament and of the Council and Annex I to Commission Regulation (EC) No 2073/2005 as regards salmonella in fresh poultry meat (OJ 2011 L 281, p. 7).

(2) Commission Regulation (EC) No 2073/2005 of 15 November 2005 on microbiological criteria for foodstuffs (OJ 2005 L 338, p. 1).
1.

Has the national legislature properly complied with Articles 7 and 9 of Directive 90/314/EEC, (1) that is to say, has it ensured effective protection for individuals in the event of insolvency on the part of travel organisers or retailers, in so far as it has made provision that the value of the financial security provided by the travel organiser or retailer is to be adjusted to a set percentage of anticipated net revenues from the sale of the tourist package or to a minimum amount?
1.

Is it consistent with Community law for it to be permissible for a contracting authority, in the exercise of its power to withdraw a decision in relation to a public procurement procedure pursuant to Article 21d of Law No 241/1990, to decide not to proceed with the final award of the contract merely because criminal investigations are pending vis-à-vis the legal representative of the company to which the provisional award was made?
6.

Do the principle of effectiveness, the high level of consumer protection within the European Union sought by Directive 1999/44 or other provisions or norms of European Union law preclude Netherlands law relating to the burden resting on the consumer-purchaser of presenting the facts and adducing the evidence that the goods are not in conformity and that that lack of conformity became apparent within six months of delivery? What is the meaning of the words ‘any lack of conformity which becomes apparent’ in Article 5(3) of Directive 1999/44 and in particular: to what extent must the consumer-purchaser establish facts and circumstances concerning (the cause of) the lack of conformity? Is it sufficient in that regard that the consumer-purchaser establish, and in the case of a substantiated challenge prove, that the purchased goods do not function (well), or must he also establish, and in the case of a substantiated challenge prove, which defect in the purchased goods caused the purchased goods not to function (well)?