ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 311/21

Appeal brought on 10 August 2011 by the Council of the European Union against the judgment of the General Court (Fifth Chamber, extended composition) delivered on 8 June 2011 in Case T-86/11 Bamba v Council

(Case C-417/11 P)

2011/C 311/35

Language of the case: French

Parties

Appellant: Council of the European Union (represented by: M. Bishop, B. Driessen and E. Dumitriu-Segnana, Agents)

Other parties to the proceedings: Nadiany Bamba, European Commission

Form of order sought

The Council claims that the Court should:

— set aside the judgment delivered on 8 June 2011 by the General Court (Fifth Chamber, extended composition) in Case T-86/11 Bamba v Council;

— give final judgment in the matters that are the subject of the present appeal and dismiss the application by Ms Nadiany Bamba as unfounded; and

— order Ms Nadiany Bamba to pay the costs incurred by the Council at first instance and in connection with the present appeal.

Pleas in law and main arguments

The Council puts forward two pleas in law in support of its appeal.

The appellant’s main plea is that the reasoning provided in the contested measures meets the requirements of Article 296 TFEU and, consequently, the General Court erred in law in ruling that the contested measures are vitiated by an inadequate statement of reasons. The Council provided in the recitals in the preambles to the contested measures a detailed description of the particularly serious situation in Côte d’Ivoire which justified the measures taken against certain persons and entities. Moreover, the Council clearly stated the reasons why it considers that Ms Nadiany Bamba should be subject to the restrictive measures concerned.

In the alternative, the Council claims that the General Court erred in law in failing to take into account, in its assessment of whether the obligation to state reasons had been complied with, the context, which is well known to Ms Nadiany Bamba, in which the contested measures were adopted.
EN Official Journal of the European Union C 340/10

Reference for a preliminary ruling from the Stockholms tingsrätt (Sweden) lodged on 2 September 2011 — Ulf Kazimierz Radziejewski v Kronofogdemyndigheten i Stockholm

(Case C-461/11)

2011/C 340/17

Language of the case: Swedish

Referring court

Stockholms tingsrätt

Parties to the main proceedings

Applicant: Ulf Kazimierz Radziejewski

Defendant: Kronofogdemyndigheten i Stockholm

Question referred

Can the requirement for Swedish residence in Paragraph 4 of the skuldsaneringslagen (2006:548) (Law on debt relief) be regarded as being liable to prevent or deter a worker from leaving Sweden to exercise his right to freedom of movement and thus be regarded as running counter to the provision on the freedom of movement for workers within the Union provided for in Article 45 of the Treaty on the Functioning of the European Union?
EN Official Journal of the European Union C 331/13

Reference for a preliminary ruling from the Augstākās tiesas Senāts (Republic of Latvia) lodged on 14 September 2011 — SIA ‘Garkalns’ v Rīgas dome

(Case C-470/11)

2011/C 331/23

Language of the case: Latvian

Referring court

Augstākās tiesas Senāts

Parties to the main proceedings

Appellant: SIA ‘Garkalns’

Respondent: Rīgas dome

Question referred

Must Article 49 EC and the related obligation of transparency be interpreted as meaning that the use, in a law that has been enacted publicly and in advance, of an imprecise legal concept such as ‘substantial impairment of the interests of the State and of the residents of the administrative area concerned’ — a concept which has to be defined in each individual case in which it applies with the help of interpretative guidelines but which at the same time allows a degree of flexibility in the assessment of restrictions on the freedom to provide services — is compatible with the permissible restrictions on that freedom?
2.

Does Community law and, in particular, Article 6 of Directive 93/37/EEC (subsequently, Article 4 of Directive 2004/18/EC) and the principle of the freedom of entities admitted to participate in tendering procedures to adopt a particular legal form, allow the national legislature to place limits on the legal capacity of a contractor (or, according to the definition given in Directive 2004/18/EC, an economic operator), in the light of the special features of the rules of national law governing such contractors, prohibiting them from participating in public tendering procedures, or is such a restriction in breach of the principles of reasonableness and non-discrimination?
3.

Can Article 1 of Directive 2008/52/EC, concerning the balanced relationship between mediation and judicial proceedings, Article 3(a), recital 10 and recital 13 of Directive 2008/52/EC, concerning the essentially voluntary nature of the mediation process for the parties as regards its organisation and any decision to terminate it, be interpreted as meaning that, where an amicable voluntary settlement is not reached, the mediator may draw up a proposal for conciliation, unless the parties concerned have jointly requested him not to do so (since they consider that they must terminate the mediation process)?’
2.

Does the Community directive on the return of third-country nationals preclude criminal sanctions where a foreign national is merely unlawfully present on national territory, regardless of whether the administrative return procedure provided for by the national legislation and by the directive itself has been completed?
1.

Can Article 45(2)(d) of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts, (1) which states that ‘[a]ny economic operator may be excluded from participation in a contract where that economic operator. has been guilty of grave professional misconduct proven by any means which the contracting authorities can demonstrate’, in conjunction with Articles 53(3) and 54(4) of Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors, (2) be interpreted as meaning that it is possible to regard as culpable professional misconduct a situation in which the contracting authority concerned annulled, terminated or renounced a public contract with the economic operator concerned owing to circumstances for which that operator is responsible, where the annulment, termination or renouncement occurred in the three-year period before the procedure was initiated and the value of the non-performed part of the contract amounted to at least 5 % of the contract’s value?
EN Official Journal of the European Union C 6/2

Appeal brought on 28 July 2011 by Jager & Polacek GmbH against the judgment of the General Court (Seventh Chamber) delivered on 12 May 2011 in Case T-488/09 Jager & Polacek GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-402/11 P)

2012/C 6/02

Language of the case: German

Parties

Appellant: Jager & Polacek GmbH (represented by: A. Renck, Rechtsanwalt)

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

Form of order sought

The appellant claims that the Court should:

— Set aside the judgment of the General Court (Seventh Chamber) of 12 May 2011 in Case T-488/09;

— Order the defendant at first instance to pay the costs.

Pleas in law and main arguments

The requirement for effective legal protection demands that the disputed communication of the Office for Harmonisation in the Internal Market, by which the appellant’s opposition was declared admissible, be regarded as a decision and that the opposition proceedings be continued. The contrary view of the General Court is legally incorrect and based on judgments of the Court of Justice which do not apply to the present case.

Furthermore, the General Court erred in stating that a communication cannot be a decision. What is correct is, rather, that a decision may also be contained in a communication.

Lastly, the General Court provided insufficient grounds as to why the international registration of the disputed mark is irrelevant as regards the present case.
—

total failure to state grounds, as well irrational, tautological, illogical and inconsistent reasoning, and misinterpretation and misapplication of Annex X to the Staff Regulations of Officials of the European Union, of the rules on the interpretation of laws and of the conditions governing the liability of a European Union institution for payment of compensation for damage;
Appeal brought on 24 November 2011 by Regione Puglia against the order of the General Court (First Chamber) delivered on 14 September 2011 in Case T-84/10 Regione Puglia v Commission

(Case C-586/11 P)

(2012/C 25/75)

Language of the case: Italian

Parties

Appellant: Regione Puglia (represented by: F. Brunelli and A. Aloia, avvocati)

Other party to the proceedings: European Commission

Form of order sought

— Set aside the order made on 14 September 2011 by the General Court, notified to the appellant on 15 September 2011, declaring that the action in Case T-84/10 is inadmissible;

— Accordingly, analyse the substance of the case and, consequently, annul Decision C(2009) 10350 of the European Commission of 22 December 2009 concerning ‘the lifting of the suspension of interim payments from the European Regional Development Fund relating to the programme to which this decision refers’, confirming the validity and applicability only of the provision made in Article 4;

— Order the Commission to pay the costs.

Pleas in law and main arguments

The appellant alleges, first, procedural irregularities in the proceedings before the court at first instance, which were seriously detrimental to the appellant, namely the omission of the oral procedure provided for in Article 114(3) of the Rules of Procedure of the General Court.

Second, the appellant claims that the General Court infringed Community law, first, by misinterpreting the fourth paragraph of Article 263 TFEU and Council Regulation (EC) No 1260/1999, (1) in conjunction with Article 4(2) and (3) TFEU and Article 5(3) TFEU, and, second, failing to state adequate grounds for its findings, in breach of Article 81 of its Rules of Procedure.

(1) OJ 1999 L 161, p. 1.
Reference for a preliminary ruling from the Hessisches Landessozialgericht (Germany) lodged on 19 October 2011 — Angela Strehl v Bundesagentur für Arbeit Nürnberg

(Case C-531/11)

(2012/C 25/49)

Language of the case: German

Referring court

Hessisches Landessozialgericht

Parties to the main proceedings

Applicant: Angela Strehl

Defendant: Bundesagentur für Arbeit Nürnberg

Question referred

Is the first sentence of Article 68(1) of Council Regulation (EEC) No 1408/71 (1) to be interpreted as meaning that the wage or salary of a person who is not a genuine frontier worker (Article 71(1)(b)(ii) of Council Regulation (EEC) No 1408/71) received by that person in respect of his last employment in another Member State is also to be taken into account by the competent institution of the Member State of residence during the calculation of benefits, if it is not followed by employment in the State of residence and if registration of unemployment only takes place there 11 months after the termination of the employment in the other 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 L 149, p. 2 English special edition: Series I Chapter 1971).
Reference for a preliminary ruling from the Tribunal de première instance de Bruxelles (Belgium), lodged on 24 October 2011 — Daniel Levy and Carine Sebbag v État Belge, SPF Finances

(Case C-540/11)

(2012/C 25/53)

Language of the case: French

Referring court

Tribunal de première instance de Bruxelles

Parties to the main proceedings

Claimants: Daniel Levy and Carine Sebbag

Defendants: État Belge — SPF Finances

Question referred

Is a Member State acting in compliance with Community law, and specifically in compliance with Article 56 EC, read in conjunction with Articles 10 EC, 57[2] EC and 293 EC, if it undertakes, in a double taxation convention with another Member State, to eliminate the double taxation of dividends resulting from the division of the power of taxation laid down in that convention but subsequently amends its national law in such a way that such double taxation is no longer relieved?
EN Official Journal of the European Union C 39/8

Reference for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 9 November 2011 — Société d’Exportation de Produits Agricoles SA (SEPA) v Hauptzollamt Hamburg-Jonas

(Case C-562/11)

2012/C 39/12

Language of the case: German

Referring court

Bundesfinanzhof

Parties to the main proceedings

Applicants: Société d’Exportation de Produits Agricoles SA (SEPA)

Defendant: Hauptzollamt Hamburg-Jonas

Question referred

Must a penalty be imposed on an exporter who makes a request for a refund, providing a correct explanation of the facts relevant to the grant of the export refund, although no right to a refund actually exists in relation to the relevant exportation? (1)

(1) Commission Regulation (EEC) No 3665/87 of 27 November 1987 laying down common detailed rules for the application of the system of export refunds on agricultural products (OJ 1987 L 351, p. 1) as amended by Commission Regulation No 495/97 of 18 March (OJ 1997 L 77, p. 12)
EN Official Journal of the European Union C 32/14

Reference for a preliminary ruling from the Cour d’appel de Bruxelles (Belgium) lodged on 21 November 2011 — DKV Belgium v Association belge des consommateurs test-achats ASBL

(Case C-577/11)

2012/C 32/25

Language of the case: French

Referring court

Cour d’appel de Bruxelles

Parties to the main proceedings

Applicant: DKV Belgium

Defendant: Association belge des consommateurs Test-Achats ASBL

Question referred

Should [the second paragraph of] Article 29 and Article 39(3) of Directive 92/49/EEC (1), [the third subparagraph of] Article 8(3) of Directive 73/239/EEC (2), and Articles 49 and 56 TFEU be interpreted as prohibiting the Member States from providing, with regard to health insurance contracts not linked to professional activity, provisions under which the premium, the excess payable and the benefit can be adapted, on the annual date of the premium, only:

— on the basis of the consumer price index;

— on the basis of one or more specific indices, to the costs of the services covered by private health insurance contracts [known as a ‘medical index’], if and in so far as the changes in that or those indices exceed that in the consumer price index;

— with authorisation from an administrative authority, responsible for the supervision of insurance undertakings, upon a request of the insurance undertaking concerned, where that authority finds that the application of the premium rate of that undertaking, notwithstanding the adaptations calculated on the basis of the indices referred to in the paragraphs above, gives rise to, or is likely to give rise to losses, thereby enabling it to take measures in order to balance its premium rates, which may include an amendment to the conditions of cover?

(1) Council Directive 92/49/EEC of 18 June 1992 on the coordination of laws, regulations and administrative provisions relating to direct insurance other than life assurance and amending Directives 73/239/EEC and 88/357/EEC (third non-life insurance Directive) (OJ 1992 L 228, p. 1).

(2) First Council Directive 73/239/EEC of 24 July 1973 on the coordination of laws, regulations and administrative provisions relating to the taking-up and pursuit of the business of direct insurance other than life assurance (OJ 1973 L 228, p. 3).
EN Official Journal of the European Union C 58/5

Action brought on 14 December 2011 — European Commission v Italian Republic

(Case C-641/11)

2012/C 58/06

Language of the case: Italian

Parties

Applicant: European Commission (represented by: G. Rozet and L. Pignataro)

Defendant: Italian Republic

Form of order sought

— Declare that, by retaining as a condition for priority in the selection of candidates at least two years residence in the province of Bolzano, as provided for in Article 12 of DPR 752/1976, the Italian Republic has failed to fulfil its obligations under Article 45 TFEU and Article 3(1) of Regulation (EU) No 492/2011 of the European Parliament and of the Council of 5 April 2011 on freedom of movement for workers within the Union; (1)

— Order the Italian Republic to pay the costs.

Pleas in law and main arguments

By its action, the Commission complains about the inclusion of a provision affording priority in the selection of candidates on the basis of at least two years residence in the province of Bolzano (Trentino Alto Adige), a provision which is contrary to the obligations imposed by Article 45 TFEU and also by Article 3(1) of Regulation (EU) 492/2011. The Commission recalls that, according to settled case-law of the Court of Justice, the equal treatment rule laid down in Article 45 TFEU prohibits not only overt discrimination by reason of nationality but also all covert forms of discrimination which, by the application of other distinguishing criteria, lead in fact to the same result (see, in particular, Case C-237/94 O’Flynn (1996) ECR I-2617, paragraph 17). That concerns, inter alia, a measure which draws a distinction on the basis of residence.

In their reply to the reasoned opinion of 6 August 2010, the Italian authorities admitted that ‘(t)he residence clause contained in Article 12 of DPR 752/1976 could contain elements of indirect discrimination and therefore be contrary to Article 45 TFEU’ and that ‘(i)n order to resolve this problem, the text of the article will be amended without further ado’. The Commission has not hitherto received any information concerning the amendment in question and therefore concludes that the residence condition provided for in Article 12 of DPR 752/1976 is still in force.

(1) OJ 2011 L 141, p. 1.
1.

How are Article 22(1)(a) of Council Regulation (EC) No 1698/2005 (1) (‘are setting up for the first time on an agricultural holding as head of the holding’) and Article 13(4) and (6) of Commission Regulation (EC) No 1974/2006 (2) to be interpreted in a situation where agriculture is being engaged in as part of activity in company form? When assessing whether a person has started for the first time as head of a holding, is decisive significance to be given (in the assessment of previous activity) to the fact that the person has authority based on share ownership in the company; or to the amount of income he obtains from agriculture; or to whether his activity in the company can be differentiated functionally and economically as an independent production unit? Or is being head of a holding to be assessed as a whole, taking into account (in addition to the above-mentioned factors) the person’s position in the company, and whether he in fact bears the risk pertaining to entrepreneurial activity?
EN Official Journal of the European Union C 65/5

Appeal brought on 12 December 2011 by Council of the European Union against the judgment of the General Court (Seventh Chamber) delivered on 27 September 2011 in Case T-199/04: Gul Ahmed v Council of the European Union, supported by European Commission

(Case C-638/11 P)

2012/C 65/10

Language of the case: English

Parties

Appellant: Council of the European Union (represented by: J.-P. Hix, Agent, G. Berrisch, Rechtsanwalt)

Other parties to the proceedings: Gul Ahmed Textile Mills Ltd, European Commission

Form of order sought

The appellant claims that the Court should:

— set aside the contested judgment (judgment of the General Court of 27 September 2011 in case T-199/04 in so far as the General Court (i) annulled Regulation (EC) No 397/2004 (1) imposing a definitive anti-dumping duty on imports of cotton-type bed linen originating in Pakistan (‘Contested Regulation’) and (ii) ordered the Council to bear its own costs and pay the costs incurred by the Applicant);

— dismiss the third limb of the fifth plea of the Application;

— refer the case back to the General Court for the remainder of the Application;

— order the Applicant to pay the costs of the appeal; and

— reserve costs for the proceedings before the General Court.

Pleas in law and main arguments

The Council submits that the General Court erred in finding that the abolition of the previous anti-dumping duties on bed linen from Pakistan and the implementation of a scheme of generalised tariff preferences in favour of Pakistan at the start of 2002 constituted ‘other factors’ within the meaning of Article 3(7) of the Basic Regulation. Consequently, the General Court erred in finding that in the present case the institutions committed a violation of Article 3(7) of the Basic Regulation because they failed to separate and distinguish the alleged injurious effects of these factors.

(1) Council Regulation (EC) No 397/2004 of 2 March 2004 imposing a definitive anti-dumping duty on imports of cotton-type bed linen originating in Pakistan

OJ L 66, p. 1
1.

In Regulation 343/2003/EC establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national (OJ L 50 25 February 2003 p. l), where an applicant for asylum who is an unaccompanied minor with no member of his or her family legally present in another Member State has lodged claims for asylum in more than one Member State, which Member State does the second paragraph of article 6 make responsible for determining the application for asylum?
5.

Is it permissible under Articles 167 and 168(a) of Directive 2006/112 for the purchaser of taxable goods or the recipient of taxable services who fulfils all the conditions laid down in Article 178 of the Directive to be refused the right to deduct after a tax assessment notice which was issued to the provider of the goods or services and has become final did not correct the VAT charged on that supply because ‘no chargeable event occurred’, but, rather, the right to claim tax was recognised as having accrued and was taken into consideration in determining the net tax due for the tax period in question? Is it relevant to the answer to that question that the provider of the goods or services did not submit any accounting documents during the tax assessment and that the net tax due for that period was determined solely by reference to the information given in the VAT declarations and in the sales and purchase books?
EN Official Journal of the European Union C 73/17

Reference for a preliminary ruling from the Hof van Cassatie van België (Belgium) lodged on 21 December 2011 — Belgian Electronic Sorting Technology NV v Bert Peelaers and Visys NV

(Case C-657/11)

2012/C 73/31

Language of the case: Dutch

Referring court

Hof van Cassatie van België

Parties to the main proceedings

Applicant: Belgian Electronic Sorting Technology

Defendants:

Bert Peelaers

Visys NV

Question referred

Is the term ‘advertising’ in Article 2 of Council Directive 84/450/EEC (1) of 10 September 1984 relating to the approximation of the laws, regulations and administrative provisions of the Member States concerning misleading advertising and in Article 2 of Directive 2006/114/EC (2) of 12 December 2006 concerning misleading and comparative advertising to be interpreted as encompassing, on the one hand, the registration and use of a domain name and, on the other, the use of metatags in a website’s metadata?

(1) OJ L 250, p. 17.

(2) OJ L 376, p. 21.