ddrg/super_eurlex huggingface dataset:
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2/A as a primary remedy: (2/A.1) annul the contested decision; (2/A.2) annul, in so far as necessary, the statement of reimbursement of 18 July 2005; (2/A.3) annul, to the extent necessary, the decision to reject the complaint in full; (2/A.4) order the defendant to pay to the appellant, by way of reimbursement of the additional sum needed to make up 100 %, with a view to obtaining repayment in full, of the medical expenses at issue, or by way of compensation for the damage arising as a result of the defendant's unlawful conduct, to pay to the appellant the sum of EUR 89,56 or such higher or lower amount as the Court may deem to be just and equitable; (2A/.5) order the defendant to pay to the appellant default interest on the amount referred to at 2/A.4 for the period from the date on which it became due until the date of actual payment, to be determined in accordance with the applicable rules; (2/A.6) order the defendant to pay to the appellant all the costs and expenses of the proceedings; or
1.

May the ‘polluter pays’ principle laid down in Article 174(2) EC be interpreted as meaning that, even if only by way of exception, the obligations regarding emergency safety measures, decontamination and environmental reinstatement of a contaminated site (and/or the costs relating thereto) may be imposed on a person having no connection with the release into the environment of the substances which led to the ecological impairment of that site, or, in the event of a negative answer, does that principle preclude national legislation and/or an administrative approach which imposes obligations regarding emergency safety measures, decontamination and environmental reinstatement of a contaminated site (and/or the costs relating thereto) upon a person who claims to have no connection with the release into the environment of the substances which led to the ecological impairment of that site, without any prior ascertainment of any individual responsibility by virtue of a causal link, or merely because that person happens to operate in or has property rights in a contaminated area, in breach or disregard of the principle of proportionality?
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Declare that by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2004/108/EC of the European Parliament and of the Council of 15 December 2004 on the approximation of the laws of the Member States relating to electromagnetic compatibility and repealing Directive 89/336/EEC (1), and in any event, by not communicating them to the Commission, the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive;
EN Official Journal of the European Union C 44/27

Action brought on 12 November 2008 — Commission of the European Communities v Italian Republic

(Case C-491/08)

(2009/C 44/45)

Language of the case: Italian

Parties

Applicant: Commission of the European Communities (represented by: D. Recchia, agent)

Defendant: Italian Republic

Forms of order sought

— Declare that, in respect of the planned tourist complex ‘Is Arenas’ in the Municipality of Narbolia, which concerns the habitats and species present in site ITB032228 ‘Is Arenas’: — the Italian Republic has failed to fulfil its obligations under Directive 92/43/EEC by failing to adopt, before 19 July 2006, preservation measures which, having regard to the conservation aim of that directive, are suitable for the purposes of preserving the relevant ecological interest represented at national level by the proposed site of Community importance (SCI) ITB032228 ‘Is Arenas’, and in particular by failing to prevent an activity likely seriously to endanger the ecological characteristics of the site (1); and — the Italian Republic has failed to fulfil its obligations under Article 6(2) of Directive 92/43/EEC by failing to adopt, after 19 July 2006, appropriate measures to prevent the deterioration of natural habitats and the habitats of species, as well as disturbance of the species for which that SCI was designated; and

— Order the Italian Republic to pay the costs.

Pleas in law and main arguments

The Commission is aware that a tourist complex, which includes a golf course, is under construction within the Is Arenas SCI. In the Commission's view, the planned tourist infrastructure in the Is Arenas SCI is predominantly located in the areas which ensure the ecological connection between the two largest areas of pine forest. It is therefore likely to have a significant negative impact on such areas, and especially on their function as an ‘ecological link’.

Moreover, among the undesirable features of the project, the Commission draws attention to the reduction and modification of original habitats, inter alia through the introduction of alien species such as grasses from the golf course; the loss of habitats; the effects of trampling and compaction of ground; the loss of spaces; the impact of the arrival of bathers on the habitats of the first coastal zone, which is particularly important as it contains the dune systems; and tree felling.

(1) Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7).
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Declare that, by failing to adopt, within the period prescribed, all the laws, regulations and administrative provisions necessary to comply with Directive 2005/68/EC of the European Parliament and of the Council of 16 November 2005 on reinsurance and amending Council Directives 73/239/EEC, 92/49/EEC as well as Directives 98/78/EC and 2002/83/EC (1), or in any event, by failing to inform the Commission thereof, the Czech Republic has failed to fulfil its obligations under Article 64 of that directive;
5.

In the appellant's view, the reasoning of the Court of First Instance in the matter of opinions of the legal service is at variance with the judgment of the Court in the Turco case. Even if the present case does not concern legislation, clearly an examination must also take place in this instance on the basis of the content of the opinions. The fact that the lawfulness of a previous decision could be called into question does not of itself constitute a reason for not disclosing the document — rather the contrary. The absence of information can in itself give rise to doubt as to the lawfulness of a certain decision and the legitimacy of the decision-making process as a whole. The risk of doubt could also be averted if the Commission clearly stated in the decision the reasons why it had opted for a solution which the legal service had advised against. The claim that the legal service would be more reticent and cautious lacks any basis, in the same way as the Court's reasoning regarding other documents. Besides, the appellant considers that the argument that it would be difficult for the legal service to defend a different position in court is stated in terms which are too general to show that there is a risk which is reasonably foreseeable and not purely hypothetical.
If the first question is answered in the affirmative:

Do the provisions of the Wiener Ausländergrunderwerbsgesetz (Viennese law on the purchase of real property by non-nationals; ‘WrAuslGEG’) which in the case of acquisition of immovable property by foreign companies as defined in point 3 of Paragraph 2 of the WrAuslGEG require the production of a certificate attesting to exemption from the requirement to obtain authorisation (Paragraph 5(4) and point 3 of Paragraph 3 of the WrAuslGEG) constitute a restriction on the free movement of capital (Article 56 EC) permitted under Article 57(1) EC in relation to Switzerland as a third country?
1.

Is Council Directive 69/335/EEC of 17 July 1969 concerning indirect taxes on the raising of capital (1)(as amended by Council Directive 85/303/EEC of 10 June 1985) to be interpreted as meaning that the charges of a notary employed as a civil servant for the drawing up of a notarially attested act recording a transaction covered by that directive constitute taxes for the purposes of that directive where, under the relevant national legislation, even notaries who are civil servants may be authorised to practise and are themselves owed the charges arising from that act and the State, on the basis of a general waiver, does not receive any portion of the charges for the authentication of transactions covered by the Directive?
1.

Should the phrase ‘recourse to the social assistance system’ in Article 7(1)(c) of Council Directive 2003/86/EC (1) of 22 September 2003 on the right to family reunification be interpreted as permitting a Member State to make an arrangement in respect of family reunification which results in family reunification not being granted to a sponsor who has provided evidence of having stable and regular resources to meet general subsistence costs, but who, given the level of such resources, shall nevertheless be entitled to claim special assistance to meet exceptional, individually determined, essential living costs, income-related remission of charges by municipal authorities, or income-support measures in the context of municipal minimum income policies?
EN Official Journal of the European Union C 267/24

Appeal brought on 23 May 2008 by Nuova Argricast Srl against the order of the Court of First Instance (Fifth Chamber) of 12 March 2008 in Case T-443/07 Nuova Agricast Srl v Commission of the European Communities

(Case C-225/08P)

2009/C 267/41

Language of the case: Italian

Parties

Appellant: Nuova Agricast Srl (represented by: M. A. Calabrese, avvocato)

Other party to the proceedings: Commission of the European Communities

By order of 29 June 2009, the Court of Justice (Eighty Chamber) dismissed the the appeal application.
EN Official Journal of the European Union C 82/10

Action brought on 4 December 2008 — Commission of the European Communities v Republic of Poland

(Case C-545/08)

(2009/C 82/18)

Language of the case: Polish

Parties

Applicant: Commission of the European Communities (represented by A. Nijenhuis and K. Mojzesowicz, acting as Agents)

Defendant: Republic of Poland

Form of order sought

— declare that, by regulating retail tariffs for broadband access services without carrying out a prior market analysis, the Republic of Poland has failed to fulfil its obligations under Articles 16 and 17 of Directive 2002/22/EC (1) in conjunction with Articles 16 and 27 of Directive 2002/21/EC (2);

— order the Republic of Poland to pay the costs.

Pleas in law and main arguments

By regulating retail tariffs for broadband access services without carrying out a prior market analysis, the Republic of Poland has failed to fulfil its obligations under Articles 16 and 17 of Directive 2002/22/EC in conjunction with Articles 16 and 27 of Directive 2002/21/EC.

First, the obligations imposed on Telekomunikacja Polska by the President of the Urząd Komunikacji Elektronicznej, namely the requirement of submission by the undertaking of retail tariffs for broadband access services for approval by the national regulatory authority and the requirement that the tariffs are determined on the basis of the costs of providing the services, two years after the entry into force in Poland of the binding Community provisions, constitute new obligations and not the maintenance in force of existing obligations.

Second, the regulatory obligations concerning retail broadband access services imposed on Telekomunikacja Polska by the President of the Urząd Komunikacji Elektronicznej cannot, according to the Commission, be regarded as transitional measures within the meaning of Article 27 of the Framework Directive, since Article 17 of Directive 98/10/EC, mentioned in Article 27, concerns only tariffs for the use of the fixed public telephone network and fixed public telephone services.

(1) Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users' rights relating to electronic communications networks and services (Universal Service Directive), OJ 2002 L 108, p. 51.

(2) Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive), OJ 2002 L 108, p. 33.
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declare that, by not adopting all the laws, regulations and administrative provisions necessary to comply with Directive 2004/23/EC of the European Parliament and of the Council of 31 March 2004 on setting standards of quality and safety for the donation, procurement, testing, processing, preservation, storage and distribution 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;
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Declare that the Italian Republic has failed to fulfil its obligations under the first subparagraph of Article 7(1) of Commission Directive 2006/17/EC (1) 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, by not adopting all the laws, regulations and administrative provisions necessary to comply with Directive 2006/17/EC or, in any event, by not communicating those measures to the Commission.
EN Official Journal of the European Union C 82/14

Appeal brought on 21 January 2009 by the French Republic against the judgment delivered on 4 December 2008 by the Court of First Instance (Seventh Chamber) in Case T-284/08 People's Mojahedin Organisation of Iran v Council of the European Union

(Case C-27/09 P)

(2009/C 82/26)

Language of the case: English

Parties

Appellant: French Republic (represented by: E. Belliard, G. de Bergues, A.-L. During, acting as Agents)

Other parties to the proceedings: People's Mojahedin Organisation of Iran, Council of the European Union, Commission of the European Communities

Form of order sought

— set aside the judgment of the Court of First Instance of the European Communities of 4 December 2008 in Case T-284/08 People's Mojahedin Organisation of Iran v Council;

— itself give final judgment in the case by dismissing the PMOI's action or refer the case back to the Court of First Instance.

Pleas in law and main arguments

The French Government considers that the judgment under appeal should be set aside, first, because the Court of First Instance erred in law by holding that the Council had adopted Decision 2008/583/EC (1) in disregard of the PMOI's rights of defence, without taking account of the specific circumstances of the adoption of that decision; second, because the Court erred in law by considering that the judicial procedure opened in France against alleged members of the PMOI did not constitute a decision meeting the definition in Article 1(4) of Common Position 2001/931/CFSP of 27 December 2001 on the application of specific measures to combat terrorism; and, finally, because the Court erred in law by holding that the refusal by the Council to communicate point 3 a) of one of the three documents supplied by the French authorities to the Council in support of their request for the inclusion of the PMOI in the list established by Decision 2008/583/EC, and sent to the Court by the Council in response to the Court Order of 26 September 2008 on measures of inquiry, did not enable the Court to review the lawfulness of Decision 2008/583/EC and infringed the right to effective judicial protection.

(1) Council Decision of 15 July 2008 implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism and repealing Decision 2007/868/EC (OJ 2008 L 188, p. 21).
2.

Is it compatible with Articles 152 and 153 of the Treaty on European Union to make the establishment of a second pharmacy in municipalities with a population of over 4 000 inhabitants subject to conditions such as (i) in order to be taken into account, the population in excess of that number must represent at least 50 per cent of the number triggering the pharmacy requirement, (ii) the new pharmacy must be at least 3 000 metres away from the existing pharmacy and (iii) there must be special needs on the part of the pharmacy service, related to the local terrain and road conditions, to be assessed both by the health units (local health offices) and by the local association of pharmacists or, in any event, by the authorities competent for matters concerning the organisation and supervision of the pharmacy service?
1.

Are Article 11(4) of the Second Directive (1) and Article 17(6) of the Sixth Directive (2) to be interpreted as meaning that a Member State wishing to make use of the possibility offered by those articles of (retaining) the exclusion of deduction in respect of categories of expenditure described as: — ‘the provision of food and drink to the staff of the trader’; — ‘giving business gifts or other gifts to persons in relation to whom, if they had been charged or were to be charged the relevant turnover tax, such tax would be entirely or mainly non-deductible’; — ‘providing the staff of the trader with accommodation’; — ‘providing the staff of the trader with opportunities for recreation’ has satisfied the condition requiring the designation of a category of adequately defined goods and services?
1.

Is a Turkish national who is duly registered as belonging to the labour force of a Member State and who has, for an extended period for and under the instruction of another, performed services of a certain economic value in return for which he receives remuneration a ‘worker’ for the purposes of Article 6(1) of Decision No 1/80 of the EEC/Turkey Association Council, even if the time spent in that activity amounts to only approximately 14% of the collectively agreed working time of a full-time worker (in the present case, 5.5 hours as against a 39-hour working week) and the income earned from that activity by itself covers only approximately 25% of the amount determined under the national law of the Member State to be necessary for subsistence (in the present case, approximately EUR 175 as against approximately EUR 715)? If the answer to the first question is affirmative:
EN Official Journal of the European Union C 102/13

Appeal brought on 24 February 2009 by Compagnie des bateaux mouches SA against the judgment delivered on 10 December 2008 in Case T-365/06 Bateaux mouches v OHIM

(Case C-78/09 P)

2009/C 102/22

Language of the case: French

Parties

Appellant: Compagnie des bateaux mouches SA (represented by: G. Barbaut, lawyer)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Jean-Noël Castanet

Form of order sought

— Declare the appeal of Compagnie des bateaux mouches admissible;

— set aside the judgment of the Court of First Instance of the European Communities of 10 December 2008 (Case T-365/06);

— Order the Court of First Instance of the European Communities to pay all the costs.

Pleas in law and main arguments

The appellant raises two pleas in support of its appeal.

By its first plea, the appellant alleges breach by the Court of First Instance of Article 7(1)(b) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark. (1) In that regard, it complains first that the Court of First Instance disregarded the intrinsic distinctive character which the mark had from the outset. Secondly, that distinctive character was even maintained and reinforced over time by the use made thereof by the appellant. The mark ‘BATEAUX MOUCHES’ is displayed on the boats used by the appellant — and by it alone — for tourist trips on the River Seine, the use of the terms ‘bateaux mouches’ on Internet search engines leads directly to the appellant’s website and the appellant has implemented an active policy of defending its mark against all abusive use.

By its second plea, the appellant complains that the Court of First Instance wrongly interpreted the criteria laid down by case-law enabling establishment of the acquisition by use of the distinctive character of the mark ‘BATEAUX MOUCHES’. The factors capable of demonstrating the mark’s distinctive character, such as the market share held by the mark, the intensity, geographical spread and duration of the use of that mark, the size of the investment made by the company to promote it, the proportion in the relevant fields of those who identify the product or service as coming from a particular undertaking because of the mark, should have been examined, as a whole and not merely in part, by the Court of First Instance.

(1) OJ 1994 L 11, p. 1.
2.

Are Articles 43 EC and 49 EC to be interpreted as precluding a national monopoly on certain types of gaming, such as games of chance in casinos, if there is no consistent and systematic policy whatsoever in the Member State concerned to limit gaming, inasmuch as national licensed organisers encourage participation in gaming — such as public sports betting and lotteries — and advertise such gaming (on television and in newspapers and magazines) in a manner which goes as far as offering a cash payment for a lottery ticket shortly before the lottery draw is made (‘TOI TOI TOI — Believe in luck!’)?
3.

The Commission considers that that situation gives rise to substantial disadvantages for the activities of the second mobile telephony network operator. Since it has not completed the development of its network, it can offer end users full geographical coverage only by means of the national roaming service available to it, at wholesale prices, from ATHK. This results in the second operator currently being dependent on ATHK’s wholesale national roaming service for approximately 20 % of its total traffic. Thus, since the second operator’s own network does not provide full geographical coverage, it is obliged to shoulder the real external cost of use of ATHK’s wholesale national roaming service and is dependent on that service.
Did Article 14 of the First Yaoundé Convention preclude the introduction by a Member State of an internal tax on bananas originating in Somalia, which was not in practice applied to domestically produced bananas (the production of which was totally non-existent or insignificant) and was not applicable to any other type of domestically produced fruit?

In the event of an affirmative answer to the foregoing question:
2.

In the light of SDC, is a trader (which is not itself a bank) performing an exempt service in accordance with Article 13B(d)(3) where the tasks he carries out for his client (1) comprise the collection, processing and onward payment of monies due to the client from a third party; in particular, the tasks of: (a) transmitting information to the third party's bank calling for a payment from the third party's bank account to the trader's own bank account, in reliance on a standing authorisation given by that third party to the bank (pursuant to the ‘Direct Debit’ scheme); and subsequently, if the bank makes that payment, (b) giving an instruction to his own bank to transfer funds from his account to the client's bank account but (2) do not include tasks of (a) making a debit to one bank account, (b) making a corresponding credit to another bank account, or (c) performing any intervening task between (a) and (b)?
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Declare that, by failing to adopt all the laws, regulations and administrative provisions necessary to comply with Directive 2003/59/EC of the European Parliament and of the Council of 15 July 2003 on the initial qualification and periodic training of drivers of certain road vehicles for the carriage of goods or passengers, amending Council Regulation (EEC) No 3820/85 and Council Directive 91/439/EEC and repealing Council Directive 76/914/EEC (1) or, in any event, by failing to notify those provisions to the Commission, the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive;