ddrg/super_eurlex huggingface dataset:
Request for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 29 August 2018 — Indaco Service Soc. coop. sociale, Coop. sociale il Melograno v Ufficio Territoriale del Governo Taranto

(Case C-552/18)

(2018/C 436/29)

Language of the case: Italian

Referring court

Consiglio di Stato

Parties to the main proceedings

Appellant: Indaco Service Soc. coop. sociale, Coop. sociale il Melograno

Respondent: Ufficio Territoriale del Governo Taranto

Question referred

Does EU law, more specifically Article 57(4) of Directive 2014/24/EU (1) on public procurement, in conjunction with recital 101 of the directive and the principles of proportionality and equal treatment, preclude national legislation, such as that at issue, which categorises ‘grave professional misconduct’ as a mandatory ground of exclusion of an economic operator and provides that, where the professional misconduct has led to the early termination of a public contract, the operator may be excluded only if the termination is not contested or is confirmed at the conclusion of judicial proceedings?

(1) Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC (OJ 2014 L 94, p. 65).
Action brought on 2 October 2018 — European Commission v Republic of Poland

(Case C-619/18)

(2018/C 427/39)

Language of the case: Polish

Parties

Applicant: European Commission (represented by K. Banks, H. Krämer and S. Kaleda, acting as Agents)

Defendant: Republic of Poland

Form of order sought

The applicant claims that the Court should:

— declare that by lowering the retirement age of judges of the Sąd Najwyższy (Supreme Court) and applying it to judges appointed to the Supreme Court before 3 April 2018, and by granting the President of the Republic of Poland discretion to extend the active mandate of Supreme Court judges, the Republic of Poland has failed to fulfil its obligation under the second subparagraph of Article 19(1) of the Treaty on European Union, in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union;

— order the Republic of Poland to pay the costs.

Pleas in law and main arguments

First, the Commission claims that the provisions of the Law of 8 December 2017 on the Supreme Court (ustawa z dnia 8 grudnia 2017 r. o Sądzie Najwyższym), lowering the retirement age of judges currently in office, appointed to the Supreme Court before the date of entry into force of that law (3 April 2018), infringes the principle of security of tenure of judges.

Second, the Commission maintains that the provisions of the Law on the Supreme Court, granting the President of the Republic of Poland discretion to extend the active mandate of Supreme Court judges, infringes the principle of judicial independence.
1.

May the provisions on inadmissible applications in Article 33 of Directive 2013/32/EU, (1) on common procedures for granting and withdrawing international protection (recast) (‘the Procedures Directive’), be interpreted as not precluding a Member State’s legislation pursuant to which an application is inadmissible in the context of the asylum procedure when the applicant has arrived in that Member State, Hungary, via a country where he is not exposed to persecution or a risk of serious harm, or in which a sufficient degree of protection is guaranteed?
Action brought on 11 October 2018 — European Commission v French Republic

(Case C-636/18)

(2018/C 445/13)

Language of the case: French

Parties

Applicant: European Commission (represented by: J.-F. Brakeland, acting as Agent)

Defendant: French Republic

Form of order sought

The applicant claims that the Court should:

declare, first, that, by systematically and persistently exceeding the annual limit value for NO2 from 1 January 2010 in the following 12 agglomerations and air quality zones: Marseille (FR03A02), Toulon (FR03A03), Paris (FR04A01), Auvergne-Clermont-Ferrand (FR07A01), Montpellier (FR08A01), Toulouse Midi-Pyrénées (FR12A01), ZUR Reims Champagne-Ardenne (FR14N10), Grenoble Rhône-Alpes (FR15A01), Strasbourg (FR16A02), Lyon-Rhône-Alpes (FR20A01), ZUR Vallée de l’Arve Rhône-Alpes (FR20N10) and Nice (FR24A01) and by systematically and persistently exceeding the hourly limit value for NO2 from 1 January 2010 in the following two agglomerations and air quality zones: Paris (FR04A01) and Lyon Rhône-Alpes (FR20A01), the French Republic has continued to fail to fulfil its obligations under Article 13(1) of Directive 2008/50/EC of the European Parliament and of the Council of 21 May 2008 on ambient air quality and cleaner air for Europe, (1) read in conjunction with Annex XI to that directive, from the coming into force of the limit values in 2010,

and

secondly, that the French Republic has failed, from 11 June 2010, to fulfil its obligations under Article 23(1) of Directive 2008/50/EC of the European Parliament and of the Council of 21 May 2008 on ambient air quality and cleaner air for Europe, read in conjunction with Annex XV to that directive, and in particular the obligation laid down in the second subparagraph of Article 23(1) of that directive to ensure that the exceedance period is kept as short as possible;

order the French Republic to pay the costs.

Pleas in law and main arguments

From 2010, the annual and hourly limit values of NO2 were systematically and persistently exceeded in the 12 and two zones, respectively. Those exceedances in themselves constitute an infringement of Article 13(1) of Directive 2008/50/EC of the European Parliament and of the Council of 21 May 2008 on ambient air quality and cleaner air for Europe, read in conjunction with Annex XI to that directive.

Notwithstanding that infringement of Article 13(1) of Directive 2008/50/EC, read in conjunction with Annex XI thereto, the French Republic has not adopted, contrary to what is provided for by the second subparagraph of Article 23(1) of Directive 2008/50/EC, any appropriate measures in air quality plans in order to ensure that the period during which limits are exceeded can be kept as short as possible.

The lack of effectiveness of those measures is apparent from, inter alia, the duration of the period during which limit values were exceeded, the level of those exceedances, their development and the detailed analysis of each of the plans adopted by the French authorities for the 12 zones concerned.

(1) OJ 2008 L 152, p. 1.
Request for a preliminary ruling from the Cour d’appel de Paris (France) lodged on 15 October 2018 — A v Daniel B, UD, AFP, B, L

(Case C-649/18)

(2019/C 4/20)

Language of the case: French

Referring court

Cour d’appel de Paris

Parties to the main proceedings

Appellant: A

Respondents: Daniel B, UD, AFP, B, L

Questions referred

The Court of Justice must rule on the question of whether EU law, in particular;

— Article 34 TFEU,

— Article 85c of European Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use (as amended), (1)

— the internal-market clause in Article 3 of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services for electronic commerce, (2)

allows a Member State of the European Union to impose, within its territory, specific rules on pharmacists who are nationals of another EU Member State operating in its territory concerning:

— the prohibition of soliciting clients through procedures and methods which are regarded as being contrary to the dignity of the profession, pursuant to the present version of Article R 4235 22 of the French Public Health Code;

— the prohibition of inciting patients to misuse medicinal products, pursuant to the present version of Article R 4235 64 of the French Public Health Code;

— the obligation to observe good practices, as defined by the public authorities of the Member State, in the distribution of medicinal products, which also requires that a health questionnaire be included when medicinal products are ordered online and which prohibits the use of paid referencing pursuant to the present version of the Decree of 28 November 2016 of the (French) Minister for Social Affairs and Health.

(1) OJ 2001 L 311, p. 67.

(2) Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’) (OJ 2000 L 178, p. 1).
2.

Can an entity operating under government control be regarded as being a captive financial institution within the meaning of paragraphs 2.21 to 2.23, 2.27 and 2.28 of Regulation (EU) No 549/2013 of the European Parliament and of the Council of 21 May 2013 on the European system of national and regional accounts [in the European Union]: (a) on the ground that the regulation of its activity by the government in question removes from it control over its assets, even though it is afforded the capacity to decide to grant the mortgage loans which it provides, their duration, their amount and some of their conditions, whilst at the same time the government determines other factors, and in particular the interest rate applied to the loans; (b) on the ground that, inter alia, the guarantee given to it by government in respect of the loans taken out by it removes from it control over its liabilities, without examining the purpose and the effects of such a guarantee in the light of its features in the present case and of the underlying economic reality?
2.

If the answer to Question 1 is no, are goods transported ‘by or on behalf of the supplier’ where the customer contracts with the delivery company and one of the following applies, and if so, which one(s): a) The customer has no practical alternative but to use the delivery company. b) The customer has contact only with the supplier and not with the delivery company. c) The supplier and the delivery company agree the price to be charged by the delivery company with no input from the customer. d) The supplier rebates the delivery charge to the customer by way of a discount on the price of the goods. e) The supplier collects the delivery charges from the customer and remits it the third party delivery company. f) The contractual terms which set out when title to the goods passes to the customer do not make commercial sense, but this does not matter in practice, because the supplier makes good to the customer the cost of any damage to the goods during delivery. g) In relation to delivery charges where there is a problem with the original delivery: i) under its contract with the customer the supplier is obliged to refund the charges already paid by the customer; ii) under its contract with the customer the supplier is not obliged to refund those charges, but does so as a matter of practice; iii) in either case, the supplier (and not the delivery company) bears the cost of these refunds; and/or iv) under its contract with the customer the supplier is obliged to pay both the costs of sending replacement goods, and the related delivery charge; or v) under its contract with the customer the supplier is obliged to pay the cost of sending replacement goods, but not for their delivery, but does so as a matter of practice.
Request for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 5 November 2018 — Procureur-Generaal bij de Hoge Raad der Nederlanden

(Case C-678/18)

(2019/C 25/32)

Language of the case: Dutch

Referring court

Hoge Raad der Nederlanden

Parties to the main proceedings

Appellant: Procureur-Generaal bij de Hoge Raad der Nederlanden

Question referred

Must Article 90(1) of Regulation No 6/2002 (1) be interpreted as requiring the mandatory granting, to all courts and tribunals of a Member State referred to therein, of jurisdiction to grant provisional and protective measures, or does it leave the Member States — in full or in part — free to delegate jurisdiction to grant such measures exclusively to the courts and tribunals which, in accordance with Article 80(1) of Regulation No 6/2002, have been designated as courts (of first and second instance) for Community design?

(1) Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs (OJ 2002 L 3, pp 1-24).
—

Having regard to recital 15 of Regulation (EC) No 261/2004, must it be found that an event such as that at issue in the present proceedings, namely strike action by air traffic controllers in the territory to be overflown by an aircraft departing from and bound for an airport located outside the territory affected by the strike, constituted, for the air carrier, an extraordinary circumstance which could not have been avoided and entitled that carrier, as a reasonable measure in order to avoid further cancellations, to take the decision to cancel the flight at issue so as to avoid a situation in which its crews would no longer be able to operate other flights on the day of the strike, thereby minimising overall the disruption and inconvenience caused by the strike to its passengers as a whole?
If the above question is answered in the affirmative, does national legislation such as that provided for in Article L. 631-7 of the Code de la construction et de l’habitation (Construction and Housing Code) constitute an authorisation scheme for the abovementioned activity for the purposes of Articles 9 to 13 of Directive 2006/123 of 12 December 2006, or solely a requirement subject to the provisions of Articles 14 and 15?

In the event that Articles 9 to 13 of Directive 2006/123/EC of 12 December 2006 are applicable:
Request for a preliminary ruling from the Tribunal d’instance Épinal (France) lodged on 13 December 2018 — Cofidis v YP

(Case C-782/18)

(2019/C 54/19)

Language of the case: French

Referring court

Tribunal d’instance Épinal

Parties to the main proceedings

Applicant: Cofidis

Defendant: YP

Question referred

Does the protection guaranteed to consumers by Directive 2008/48/EC of the European Parliament and of the Council of 23 April 2008 on credit agreements for consumers and repealing Council Directive 87/102/EEC (1) preclude a national provision which, in an action brought by a seller or supplier against a consumer on the basis of a credit agreement which they have concluded, prohibits the national court, on expiry of a limitation period of five years from the conclusion of the agreement, from finding and penalising, of its own motion or following an objection raised by the consumer, a failure to comply with the provisions relating to the obligation laid down in Article 8 of the directive to verify the creditworthiness of the consumer, a failure to comply with those of Article 10 et seq. of the directive relating to the information which must be included in a clear and concise manner in credit agreements, and, more generally, a failure to comply with all of the consumer-protection provisions set out in that directive?

(1) OJ 2008 L 133, p. 66.
1.

On a proper construction of the third subparagraph of Article 267 TFEU, read in conjunction with Article 19(1) and Article 2 TEU and Article 47 of the [Charter of Fundamental Rights], is a newly-created chamber of a court of last instance of a Member State which has jurisdiction to hear an appeal by a national court judge and which is composed exclusively of judges selected by a national body tasked with safeguarding the independence of the courts (the National Council of the Judiciary), which, having regard to the systemic model for the way in which it is formed and the way in which it operates, is not guaranteed to be independent from the legislative and executive authorities, an independent court or tribunal within the meaning of EU law?
Official Journal of the European Union

Appeal brought on 21 June 2018 by Senetic S.A. against the judgment of the General Court (Second Chamber) delivered on 24 April 2018 in Case T-207/17: Senetic v EUIPO

(Case C-408/18 P)

(2019/C 65/26)

Language of the case: English

Parties

Appellant: Senetic S.A. (represented by: M. Krekora, adwokat)

Other parties to the proceedings: European Union Intellectual Property Office, HP Hewlett Packard Group LLC

By order of 13 December 2018 the Court of Justice (Tenth Chamber) held that the appeal was inadmissible.
3.

Is Directive 2006/112, and in particular Articles 24, 28, 167 and 168(a) thereof, to be interpreted as meaning that the costs incurred by the purchaser, who is a taxable person, in connection with the first registration in the register of immovable property of property which has been supplied to him and in respect of which the purchaser has a contractual claim for the future transfer of ownership from a vendor whose ownership of the property is not recorded in the register of immovable property, are to be classified as the provision of services to the vendor in a context in which the purchaser and the vendor have agreed that the price of the immovable property does not include the value of the land-registration operations?
Appeal brought on 5 December 2018 by the Foundation for the Protection of the Traditional Cheese of Cyprus named Halloumi against the judgment of the General Court (Second Chamber) delivered on 25 September 2018 in Case T-328/17: Foundation for the Protection of the Traditional Cheese of Cyprus named Halloumi v EUIPO

(Case C-766/18 P)

(2019/C 82/11)

Language of the case: English

Parties

Appellant: Foundation for the Protection of the Traditional Cheese of Cyprus named Halloumi (represented by: S. Malynicz QC, S. Baran, Barrister, V. Marsland, Solicitor)

Other parties to the proceedings: European Union Intellectual Property Office, M. J. Dairies EOOD

Form of order sought

The appellant claims that the Court should:

— Allow the appeal against the judgment of the General Court in Case T-328/17, Foundation for the Protection of the Traditional Cheese of Cyprus named Halloumi v. European Intellectual Property Office (EUIPO), EU:T:2018:594, and grant the appellant’s application for annulment;

— Order the Office and intervener to bear their own costs, and pay those of the appellant.

Pleas in law and main arguments

1. The General Court erred in failing to accord to the HALLOUMI Collective Mark the proper status and protection that the EUTMR requies for such collective marks, in infringement of Art 74 EUTMR;

2. In particular the General Court erred in applying a completely unmodified approach to the assessment of the distinctiveness of the HALLOUMI Collective Mark contrary to Arts 8(1)(b) and 74 EUTMR;

3. The General Court incorrectly appraised and applied the effect of this court’s decision in Joined Cases C-673/15 P to C-676/15 P, The Tea Board v. EUIPO (‘Tea Board’), and its reasoned order in C-392/12 P, Foundation for the Protection of the Traditional Cheese of Cyprus Named Halloumi v. OHIM (‘HELLIM’), and failed to give proper effect to the judgment in C-196/11 P, Formula One Licensing v. OHIM, EU:C:2012:314 (‘F1’); and
1.

If a seller of a property, on the basis of the rules introduced by the Member State in accordance with Article 188(2) of the VAT Directive, (1) has not adjusted a deduction of input tax because the purchaser intends to use the property exclusively for transactions giving rise to a right of deduction, does that then preclude, in a case where the adjustment period continues to run, the purchaser being required to adjust the deduction at a subsequent time when the purchaser in turn transfers the property to someone who does not intend to use the property for such transactions?
Official Journal of the European Union

Appeal brought on 29 August 2018 by Lion's Head Global Partners LLP against the judgment of the General Court (Ninth Chamber) delivered on 14 June 2018 in Case T-310/17: Lion's Head Global Partners LLP v EUIPO

(Case C-554/18 P)

(2019/C 93/30)

Language of the case: English

Parties

Appellant: Lion's Head Global Partners LLP (represented by: R. Nöske, Rechtsanwalt)

Other party to the proceedings: European Union Intellectual Property Office

By order of 15 January 2019 the Court of Justice (Eighth Chamber) held that the appeal was inadmissible.
4.

The General Court also failed in deciding that the marks at issue were phonetically identical because the Appellant had not adduced evidence to suggest that the sound of the first syllables ‘ti’ and ‘TAl’ were not identical for the English-speaking public and that there was nothing to separate the pronunciation of the signs at issue. It is — on the contrary — the case that the General Court has assumed without any evidence and incorrectly that the sequence of letters ‘ti’ was always pronounced ‘tai’. There is no evidence for this assessment. A word ‘ti’ does not exist in the English language. The sequence of letters is therefore always pronounced only in accordance with the linguistic rules applicable to the word in question. We may take it for granted that innumerable words exist in which the letter sequence ‘ti’ is not pronounced like ‘tai’, such as ‘trick’, ‘ticket’, ‘till’, ‘timbal’, ‘timberland’, ‘tin’, ‘tincture’, ‘tinder’, ‘tip’, ‘trigger’ and many more as well as the contested trademark ‘tigha’. The famous English children's book Winnie-the-Pooh contains as one of the main characters an animal named ‘Tigger’, pronounced [tɪɡə]. Thus, whenever the vowel after ‘ti’ is pronounced short, there is no pronunciation like ‘tai’. This is what the Appellant had said from the outset. Neither the Defendant nor the lntervener have submitted evidence to the contrary. It was therefore not for the Appellant to adduce proof of the obvious.
3.

If the second question referred is answered in the negative: Is Article 3(4)(b) of Directive 2001/23/EC to be interpreted to mean that the measures necessary to protect the interests of employees in respect of rights conferring on them immediate or prospective entitlement to old-age benefits under supplementary company or intercompany pension schemes have been taken if the national law provides that — the obligation to provide the employee covered by the transfer of a business in insolvency proceedings with old-age benefits under supplementary company or intercompany pension schemes in the future is transferred to the transferee of the business, — the transferee of the business is liable for future pension entitlements to the extent that they are based on periods of service completed after insolvency proceedings are opened, — in that case, the insolvency insurance institution designated under national law does not have to assume responsibility for the part of the future pension entitlements that was acquired before the insolvency proceedings had been opened, and — the employee may assert, in the insolvency proceedings of the transferor, the value of the part of the future pension entitlements that was acquired before the insolvency proceedings had been opened?