ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 55/7

Appeal brought on 27 November 2008 by HUP Uslugi Polska sp. z o.o. (formerly HP Temporärpersonalgesellschaft mbH) against the judgment of the Court of First Instance (Fifth Chamber) delivered on 24 September 2008 in Case T-248/05 HUP Uslugi Polska sp. z o.o. (formerly HP Temporärpersonalgesellschaft mbH) v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Manpower, Inc.

(Case C-520/08 P)

(2009/C 55/10)

Language of the case: English

Parties

Appellant: HUP Uslugi Polska sp. z o.o. (formerly HP Temporärpersonalgesellschaft mbH) (represented by: M. Ciresa, Rechtsanwalt)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Manpower, Inc.

Form of order sought

The appellant claims that the Court should:

— annul the judgment under appeal

— order OHIM to pay the costs

Pleas in law and main arguments

The appellant submits that the judgment of the Court of First Instance infringes Articles 51(1)(a) in conjunction with Article 7(1)(b), 7(1)(c), 7(1)(d) and 7(1)(g) of Council Regulation No 40/94 on the Community trademark.
EN Official Journal of the European Union C 55/13

Reference for a preliminary ruling from the Anotato Dikastirio Kiprou (Cyprus) lodged on 22 December 2008 — Simvoulio Apokhetevseon Levkosias v Anatheoretiki Arkhi Prosforon

(Case C-570/08)

(2009/C 55/20)

Language of the case: Greek

Referring court

Anotato Dikastirio Kiprou (Supreme Court of Cyprus)

Parties to the main proceedings

Applicant: Simvoulio Apokhetevseon Levkosias (Nicosia Sewage Council)

Respondentt: Anatheoretiki Arkhi Prosforon (Tenders Review Authority)

Question referred

Does Article 2(8) of Directive 89/665/EC recognise contracting authorities as having a right to judicial review of cancellation decisions by bodies responsible for review procedures which are not judicial bodies?
2.

Is it relevant to the answer to that question whether it is the vendor or the purchaser of the building who has given the order for demolition and is charged the cost thereof, and thus the supply is taxed only if the vendor has given the order for demolition and is charged the cost thereof?
EN Official Journal of the European Union C 55/14

Action brought on 22 December 2008 — Commission of the European Communities v Italian Republic

(Case C-572/08)

(2009/C 55/22)

Language of the case: Italian

Parties

Applicant: Commission of the European Communities (represented by: A. Aresu and W. Mölls, acting as Agents)

Defendant: Italian Republic

Forms of order sought

— A declaration that the Italian Republic has failed to fulfil its obligations under Article 90 EC, by conferring a tax concession on regenerated lubricating oil produced from used oil collected in Italy, but refusing to confer the same concession on regenerated lubricating oil produced from used oil collected in other Member States (in accordance with Circular 24/D of 5 May 2004 of the Italian Revenue Authority and Article 1(116) of Law No 266 of 23 December 2005, as interpreted by Article 62 of the Testo unico delle disposizioni legislative concernenti le imposte sulla produzione e sui consumi e relative sanzioni penali e amministrative (Consolidated Text of Legislative Provisions relating to duties on production and consumption and related criminal and administrative penalties) approved by Decree No 504 of the President of the Republic of 26 October 1995);

— An order that the Italian Republic is to pay the costs.

Pleas in law and main arguments

The Commission complains that the Italian authorities are operating a system of tax concessions on regenerated lubricating oil which favours national production to the detriment of that from other Member States, in clear breach of the principle of non-discrimination, which in the field of taxation is laid down in Article 90 EC.

That system reproduces a previous regime of tax concessions already condemned by the Court of Justice in 1980, and the Italian Republic's arguments in favour of the new system cannot justify such a choice.
EN Official Journal of the European Union C 267/24

Appeal brought on 24 December 2008 by Devrajan Srinivasan against the order of the Court of First Instance (Sixth Chamber) delivered on 03 November 2008 in Case T-196/08: Srinivasan/Médiateur

(Case C-580/08 P)

2009/C 267/43

Language of the case: English

Parties

Appellant: Devrajan Srinivasan (represented by: J. Morton, Solicitor)

Other party to the proceedings: Médiateur européen

By order of 25 June 2009 the Court of Justice (Sixth Chamber) held that the appeal was inadmissible.
EN Official Journal of the European Union C 82/10

Appeal brought on 9 February 2009 by Deepak Rajani (Dear!Net Online) against the judgment of the Court of First Instance (Eighth Chamber) delivered on 26 November 2008 in Case T-100/06 Deepak Rajani (Dear!Net Online) v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-559/08 P)

(2009/C 82/19)

Language of the case: English

Parties

Appellant: Deepak Rajani (Dear!Net Online) (represented by: A. Kockläuner, Rechtsanwalt)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Artoz-Papier AG

Form of order sought

— Set aside in whole the Decision of the Court of First Instance dated 26 November 2008, Case T-l00/06.

— Order OHIM to pay the costs of the proceedings before the Court of Justice.

Pleas in law and main arguments

The appellant submits that the contested judgment should be annulled on the following grounds:

— the Court of First Instance, when rejecting the first plea in law, misinterpreted Article 43 Section 2 and Section 3 of the Community Trademark Regulation (CTMR) in conjunction with Article 4 Section 1 of the Madrid Agreement;

— the Court of First Instance, when rejecting the first plea in law, infringed Article 6 of the Treaty on the European Union (Consolidated Version) as well as Article 6 in connection with Article 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR);

— the Court of First Instance, when rejecting the first plea in law, infringed Article 10 of Directive 89/104 (EC) (1) in conjunction with Article 1 of Directive 89/104 (EC);

— the Court of First Instance, when rejecting the second plea in law, infringed Article 79 CTMR by not taking into account that the opponent acted in bad faith;

— the Court of First Instance, when rejecting the second plea in law, wrongly viewed the trademarks at issue as confusingly similar and thus, infringed Article 8 Section 1 b) CTMR;

— the Court of First Instance, when rejecting the second plea in law, infringed Article 135 Section 4 of the Rules of Procedure of the Court of First Instance by not taking into account the supportive evidence as annexes to the court action before it;

— the Court of First Instance, when rejecting the second plea in law, infringed Articles 49 and 50 in conjunction with Article 220 of the Treaty on European Union (Consolidated Version);

— the Court of First Instance, when rejecting the second plea in law, did not take into account that OHIM misused their power.

(1) First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks (OJ L 40, p. 1).
—

declare that, by not adopting all the laws, regulations and administrative provisions necessary to comply with Commission Directive 2006/17/EC of 8 February 2006 implementing Directive 2004/23/EC of the European Parliament and of the Council as regards certain technical requirements for the donation, procurement and testing of human tissues and cells (1) or, in any case, by not communicating them to the Commission, the Kingdom of Belgium has failed to fulfil its obligations under that directive;
—

a declaration that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Commission Directive 2006/86/EC (1) of 24 October 2006 implementing Directive 2004/23/EC of the European Parliament and of the Council as regards traceability requirements, notification of serious adverse reactions and events and certain technical requirements for the coding, processing, preservation, storage and distribution of human tissues and cells or, at any event, by failing to communicate those measures to the Commission, the Portuguese Republic has failed to fulfil its obligations under that directive;
3.

Do the benefits of this directive mean recognition as a refugee, or either of the two forms of protection covered by the directive (recognition as a refugee and the grant of subsidiary protection), according to the choice made by the Member State, or, possibly, neither automatically but merely inclusion in the scope ratione personae of the directive?
3.

If the answer to question 2 is in the affirmative, can the definition that may be given by the national legal order of forests and wooded land to include land that does not constitute forest or wooded land under the definitions in Article 3(a) and (b) of Regulation (EC) No 2152/2003 differ from the definition in the above Regulation both as to the constituent elements included in the definition of forest or wooded land by the Regulation and as to the numerical determination of the dimensions of those elements that may be in common with the Regulation? Alternatively can that definition under the national legal order include constituent elements of the definition of forest or wooded land that are different from those included in the Regulation’s definition, but as to elements that it has in common with the Regulation its being permissible not to determine them numerically; if it does determine them numerically though, is it precluded from deviating from that (numerical determination) under the Regulation?
EN Official Journal of the European Union C 102/15

Appeal brought on 25 February 2009 by the Commission of the European Communities against the judgment delivered by the Court of First Instance (Seventh Chamber) on 10 December 2008 in Case T-388/02 Kronoply GmbH & Co. KG and Kronotex GmbH & Co. KG v Commission of the European Communities, supported by Zellstoff Stendal GmbH, Federal Republic of Germany and Land Sachsen-Anhalt

(Case C-83/09 P)

2009/C 102/25

Language of the case: German

Parties

Appellant: Commission of the European Communities (represented by: K. Gross and V. Kreuschitz, Agents)

Other parties to the proceedings: Kronoply GmbH & Co. KG, Kronotex GmbH & Co. KG, Zellstoff Stendal GmbH, Federal Republic of Germany and Land Sachsen-Anhalt

Form of order sought

— Set aside the judgment under appeal in so far as it declares admissible the action for annulment brought by Kronoply GmbH & Co. KG and Kronotex GmbH & Co. KG against the Commission’s decision of 19 June 2002 to raise no objections to aid granted by Germany in favour of Zellstoff Stendal GmbH for the construction of a production plant for pulp;

— dismiss as inadmissible the action for annulment brought by Kronoply GmbH & Co. KG and Kronotex GmbH & Co. KG against the contested act;

— order Kronoply GmbH & Co. KG and Kronotex GmbH & Co. KG to pay the costs.

Pleas in law and main arguments

In the Commission’s view, the establishment of a right of action against decisions on aid in favour of parties concerned within the meaning of Article 88(2) EC infringes the requirements laid down in the fourth paragraph of Article 230 EC as to the admissibility of actions. Parties concerned who are not parties to the aid procedure do not have their own party rights, enforceable by bringing proceedings. Instead, individual concern is to be determined on the basis of the Court’s Plaumann formula. Individual concern can, therefore, arise only by virtue of the economic impact of the aid on the applicant.

In addition, the judgment under appeal includes an inadmissible reinterpretation of the forms of order sought. In the Commission’s opinion, the Court examined arguments put forward by the applicant which were not put forward in regard to the protection of the applicant’s alleged procedural rights, even though the action was admissible only for the purposes of protecting the alleged procedural rights.

The judgment under appeal would ultimately lead to the introduction of a popular action against State aid law decisions which is extraneous to Community law.
EN Official Journal of the European Union C 129/10

Reference for a preliminary ruling from the Finanzgericht München (Germany), lodged on 3 April 2009 — Roeckl Sporthandschuhe GmbH & Co. KG v Hauptzollamt München

(Case C-123/09)

2009/C 129/17

Language of the case: German

Referring court

Finanzgericht München

Parties to the main proceedings

Claimant: Roeckl Sporthandschuhe GmbH & Co. KG

Defendant: Hauptzollamt München

Question referred

Must subheading 3926 20 00 of the Combined Nomenclature, in the version set out in Commission Regulation (EC) No 1789/2003 of 11 September 2003 amending Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff, (1) be interpreted as meaning that it covers also textile articles that have been roughened on one side and covered with a layer of plastic, but which do not have a function beyond that of mere reinforcement, where the roughening serves only to improve the adhesion of the layer of plastic and is no longer discernible to the user once the manufacture of the article has been completed (cf. also Harmonised System explanatory note 56.6 on Chapter 39 of the Combined Nomenclature)?

(1) OJ 2003 L 281, p. 1; OJ 1987 L 256, p. 1.
—

declare that, by failing to adopt all such laws, regulations and administrative provisions necessary to comply with Commission Directive 2007/14/EC of 8 March 2007 laying down detailed rules for the implementation of certain provisions of Directive 2004/109/EC on the harmonisation of transparency requirements in relation to information about issuers whose securities are admitted to trading on a regulated market, (1) or in any event, by failing to inform the Commission thereof, the Czech Republic has failed to fulfil its obligations under Article 24 of that directive;
EN Official Journal of the European Union C 141/32

Reference for a preliminary ruling from the Oberlandesgericht Nürnberg (Germany) lodged on 6 April 2009 — Coty Prestige Lancaster Group GmbH v Simex Trading AG

(Case C-127/09)

2009/C 141/55

Language of the case: German

Referring court

Oberlandesgericht Nürnberg

Parties to the main proceedings

Applicant: Coty Prestige Lancaster Group GmbH

Defendant: Simex Trading AG

Question referred

Are goods put on the market within the meaning of Article 13(1) of Regulation (EC) No 40/94 (1) and Article 7 of Directive 89/104/EEC (2) if ‘perfume testers’ are made available to contractually-bound intermediaries without transfer of ownership and with a prohibition on the sale thereof so that those intermediaries are able to allow potential customers to use the contents of the goods for test purposes, the goods bearing a notice stating that they may not be sold, the recall of the goods by the manufacturer/trade mark proprietor at any time remaining contractually possible and the packaging of the goods being significantly different from the goods usually put on the market by the manufacturer/trade mark proprietor in that it is plainer?

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark, OJ L 11, 14.1.1994, p. 1–36.

(2) First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks, OJ L 40, 11.2.1989, p. 1–7.
1.

Does the wording ‘as well as supplies of goods and services effected by a taxable person who is not established in the territory of the country’ in Article 24(3) and in Article 28i of the Sixth Council Directive 77/388/EEC of 17 May 1977 (1) on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, in the version of No 21 of Council Directive 92/111/EEC of 14 December 1992 (2) amending Directive 77/388/EEC and introducing simplification measures with regard to value added tax, and a scheme transposing this provision into national law infringe the Treaty establishing the European Community, in particular the principle of non-discrimination (Article 12 EC), the freedom of establishment (Article 43 EC et seq.), the freedom to provide services (Article 49 EC et seq.), or fundamental rights under Community law (the Community-law principle of equal treatment) because the provision has the effect that Union citizens who are not established in the territory of the relevant country are excluded from the exemption under Article 24(2) of the Sixth Directive (Special scheme for small undertakings), whilst Union citizens who are established in the territory of the relevant country are able to claim this exemption where the relevant Member State grants an exemption for small undertakings in accordance with the Directive?
2.

If the answer to the first question is in the affirmative, do provisions such as those in internal Greek law governing the dispute at issue which, on the one hand, prohibit drying grapes from being brought from different areas of the country, for the purpose of storage, processing and onward export, to a specific area in which it is only permitted to process locally grown drying grapes and, on the other hand, reserve the possibility of recognising protected designation of origin solely for drying grapes which have been processed and packed in the specific area in which they were grown, conflict with Article 29 EC which prohibits quantitative restrictions on exports or measures having equivalent effect?
2.

Is Clause 5(1) of the ETUC-UNICE-CEEP Framework Agreement, which was implemented by Council Directive 1999/70/EC of 28 June 1999, (2) to be interpreted to the effect that it precludes a provision of national law which, without further conditions, allows the conclusion over an indefinite period of an unlimited number of successive fixed term employment contracts without objective grounds, simply because the worker has reached the age of 58 by the time the fixed term employment relationship begins and there is no close objective connection with a previous employment relationship of indefinite duration with the same employer?
—

declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2006/24/EC (1) of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC (2), or in any event by failing to communicate them to the Commission, Ireland has failed to fulfil its obligations under the Directive; and
4.

Also if the question in point 2 above is to be answered in the affirmative and Article 16(4) of the directive to be applied: can an enforced return to the host Member State in the context of criminal proceedings before expiry of the two-year period have the effect of maintaining the right to increased protection against expulsion, even where following that return the fundamental freedoms cannot be exercised for some time?
EN Official Journal of the European Union C 180/26

Action brought on 7 May 2009 — Commission of the European Communities v Kingdom of Spain

(Case C-158/09)

2009/C 180/45

Language of the case: Spanish

Parties

Applicant: Commission of the European Communities (represented by: I. Martinez del Peral Cagigal and M. van Beek, Agents)

Defendant: Kingdom of Spain

Form of order sought

— Declare that by failing to adopt the legislative or regulatory measures necessary to transpose Directive 2003/88/EC (1) in respect of non-civilian personnel in public authorities, the Kingdom of Spain has failed to fulfil its obligations under Article 1(3) of Directive 2003/88/EC, and under Article 18(a) of Directive 93/104/EC (2) retained by Article 27(1) of Directive 2003/88/EC in conjunction with Annex I, part B, to that directive;

— order the Kingdom of Spain to pay the costs.

Pleas in law and main arguments

The purpose of Directive 2003/88/EC is to lay down minimum safety and health requirements for the organisation of working time. As a codifying directive it replaces Directive 93/104/EC without prejudice to the obligations of the Member States in respect of the deadlines for transposition.

The transposition measures for Directive 2003/88/EC notified to the Commission by the Spanish authorities do not include the legislative or regulatory measures necessary for the transposition of the directive in respect of non-civilian personnel in public authorities.

Article 1(3) of Directive 2003/88/EC provides that that directive is to apply to all sectors of activity, both public and private, within the meaning of Article 2 of Directive 89/391/EEC (3) which contains certain exceptions on account of characteristics peculiar to certain specific public service activities, such as the armed forces or the police, or to certain specific activities in the civil protection services. In accordance with the case-law of the Court of Justice, the criterion used by the Community legislature to determine the scope of application of Directive 89/391/EEC is not based on the fact of the workers belonging to the specific sectors of activity referred to in Article 2, considered as a whole, but rather is based exclusively on the specific nature of certain special tasks carried out by the workers in those sectors.

Consequently, the applicant takes the view that there is no doubt that Directive 2003/88/EC applies to non-civilian personnel in public authorities and, within that sector, to the Guardia Civil (Civil Guard), as a consequence of which the failure to take the necessary transposition measures in that area constitutes an infringement of that directive.

(1) Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time (OJ 2003 L 299, p. 9).

(2) Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organisation of working time (OJ 1993 L 307, p. 18).

(3) Council Directive 89/391/EEC of 12 June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work (OJ 1989 L 183, p. 1).