ddrg/super_eurlex huggingface dataset:
6.

Do Articles 28, 30 and/or 49 EC preclude enforcement of a national law (such as section 297 of the Copyright Designs and Patents Act 1988) which makes it a criminal offence dishonestly to receive a programme included in a broadcasting service provided from a place in the United Kingdom with intent to avoid payment of any charge applicable to the reception of the programme, in any of the following circumstances: (i) where the conditional access device was made by or with the consent of a service provider and originally supplied subject to limited contractual authorisation to use the device to gain access to a protected service only in a first Member State and was used to gain access to that protected service received in another Member State (in this case the UK)? and/or (ii) where the conditional access device was made by or with the consent of a service provider and was originally procured and/or enabled by the provision of a false name and residential address in the first Member State thereby overcoming contractual territorial restrictions imposed on the export of such devices for use outside the first Member State? and/or (iii) where the conditional access device was made by or with the consent of a service provider and was originally supplied subject to a contractual condition that it be used only for domestic or private use rather than commercial use (for which a higher subscription charge is payable), but was used in the United Kingdom for commercial purposes, namely showing live football broadcasts in a public house?
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declare that, by retaining in its legislation the requirement of Greek nationality for access to the posts of captain and officer (chief mate) on all vessels flying the Greek flag, the Hellenic Republic has failed to fulfil its obligations under Article 39 of the EC Treaty;
If the answer to the first question is in the affirmative:

Is the term ‘Signature’ to be understood as meaning that the application for a refund must be signed by the taxable person himself or, in regard to a legal person, by its statutory representative, or is the signature of an agent (for example, a representative for tax purposes or an employee of the taxable person) sufficient?
2.

If the question in 2.1 is answered in the negative: Should the Community-law rules on competition under the first sentence of Article 86(2) EC be interpreted as meaning that the Investment Bank, like the Land of Saxony-Anhalt, enjoys exemption from court cost and fees only when it performs official tasks within the meaning of Paragraph 6 of the Regulation of 30 December 2003 establishing the Investment Bank of Saxony-Anhalt (GVBl. LSA 2004, p. 20), as amended by amending regulation of 2 December 2006 (GVBl. LSA, p. 534)?
2.

If the question under 2.1 is answered in the negative: Should the Community-law rules on competition under the first sentence of Article 86(2) EC be interpreted as meaning that the Investment Bank, like the Land of Saxony-Anhalt, enjoys exemption from court costs and fees only when it performs official tasks within the meaning of Paragraph 6 of the Regulation of 30 December 2003 establishing the Investment Bank of Saxony-Anhalt (GVBl. LSA 2004, p. 20), as amended by amending regulation of 2 December 2006 (GVBl. LSA, p. 534)?
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declare that, by failing to adopt, within the prescribed period, the laws, regulations and administrative provisions necessary to comply with Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications (1) or, in any event, by failing to inform the Commission thereof, the Kingdom of Belgium has failed to fulfil its obligations under that Directive;
EN Official Journal of the European Union C 6/12

Reference for a preliminary ruling from the College van Beroep voor het bedrijfsleven (Netherlands), lodged on 13 October 2008 — G. Elbertsen v Minister van Landbouw, Natuur en Voedselkwaliteit

(Case C-449/08)

(2009/C 6/19)

Language of the case: Dutch

Referring court

College van Beroep voor het bedrijfsleven

Parties to the main proceedings

Claimant: G. Elbertsen

Defendant: Minister van Landbouw, Natuur en Voedselkwaliteit

Questions referred

1. Should Article 42(4) of Council Regulation (EC) No 1782/2003 of 29 September 2003 (1) be interpreted as permitting a Member State to establish a reference amount of EUR 0 and not to allocate entitlements to payments from the national reserve to a farmer who finds himself in a special situation as described in Article 21 of Commission Regulation (EC) No 795/2004 of 21 April 2004 (2)?

2. If the answer to that question is in the affirmative, does Community law preclude the application of a provision such as Article 17(1)(b) of the Regeling GLB-inkomenssteun 2006 (2006 Netherlands Regulations on CAP income support), under which any increase in the amount of additional payments arising as a result of an investment in production capacity or a purchase of land is subject to a deduction of EUR 500 before a reference amount is established as the basis for the allocation of entitlements to payments from the national reserve?

(1) Regulation establishing common rules for direct support schemes under the common agricultural policy and establishing certain support schemes for farmers and amending Regulations (EEC) No 2019/93, (EC) No 1452/2001, (EC) No 1453/2001, (EC) No 1454/2001, (EC) 1868/94, (EC) No 1251/1999, (EC) No 1254/1999, (EC) No 1673/2000, (EEC) No 2358/71 and (EC) No 2529/2001 (OJ 2003 L 270, p. 1).

(2) Regulation laying down detailed rules for the implementation of the single payment scheme provided for in Council Regulation (EC) No 1782/2003 establishing common rules for direct support schemes under the common agricultural policy and establishing certain support schemes for farmers (OJ 2004 L 141, p. 1).
1.

Does Community law preclude a national authority — in order to avoid discriminating against foreign equity holdings which, unlike domestic (Austrian) equity holdings, are not tax exempt under legislation until the size of the equity holding reaches 25 % (under present legislation 10 %) — from applying the credit method because the Austrian Verwaltungsgerichtshof (Administrative Court) has ruled that this outcome is closest to the (hypothetical) intention of the legislature but not simultaneously permitting a deduction to be carried forward to subsequent years or a tax credit to be given for a loss year with regard, firstly, to the corporation tax to be credited and, secondly, to the withholding tax to be credited?
1.

Does the ‘polluter pays’ principle preclude national legislation, and in particular Article 2050 of the [Italian] Civil Code, which allows the Public Authority, where a number of industrial operators operate within the contaminated site, to impose on them the burdens of the decontamination of that site, without prior ascertainment on an individual basis of their respective responsibility for the pollution, or in any event merely because they are deemed accountable by virtue of their ownership of the means of production and are therefore subject to strict liability for the damage they cause to the environment or may they in any event be required to reinstate the area around the widespread pollution identified there even where no material causation has been established for the pollution and there is no proportional basis for it?
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Declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Commission Directive 2006/70/EC of 1 August 2006 (1) laying down implementing measures for Directive 2005/60/EC of the European Parliament and of the Council as regards the definition of ‘politically exposed person’ and the technical criteria for simplified customer due diligence procedures and for exemption on grounds of a financial activity conducted on an occasional or very limited basis or, in any event, by failing to notify the Commission thereof, the Kingdom of Sweden has failed to fulfil its obligations under that directive;
1.

Whether or not Article 6 of the EU Treaty, Article 3 of the First Additional Protocol to the ECHR, implemented by Law No 848 of 1955, Article 2 of Protocol No 4 to the ECHR, and Article 25 of the International Covenant for Civil and Political Rights, implemented by Law No 881 of 1977, are to be interpreted as compatible with the regional rules laid down in Articles 1c, 14a(13)(c), 15(3)(d), 16a(7)(a) and 17b(4)(b) and (c) of Regional Law No 29 of 1951, which exclude citizens who were not resident in Sicily at the time at which nominations were put forward from eligibility for election to the Sicilian Regional Assembly.
3.

If the answer to the second question is in the affirmative and the answer to part (i) of the first question is likewise in the affirmative, must the rules on recognition and enforcement laid down in Article 31(3) and (4) of the CMR Convention be interpreted as meaning that that convention does not claim exclusivity and leaves room for the application of other international enforcement rules making recognition or enforcement possible, such as Regulation No 44/2001? Should the Court of Justice answer part (ii) of the first question in the affirmative and likewise answer the second question in the affirmative, the Hoge Raad also refers the following three questions for the further appraisal of the appeal in cassation:
EN Official Journal of the European Union C 44/33

Reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 4 December 2008 — Staatssecretaris van Financiën v X

(Case C-536/08)

(2009/C 44/55)

Language of the case: Dutch

Referring court

Hoge Raad der Nederlanden

Parties to the main proceedings

Applicant: Staatssecretaris van Financiën

Defendant: X

Question referred

Must Article 17(2) and (3) and Article 28b(A)(2) of the Sixth Directive (1) be interpreted as meaning that, if the place of an intra-Community acquisition is deemed, on the basis of the first subparagraph of the latter provision, to be within the territory of the Member State which issued the VAT identification number under which the person acquiring made the acquisition, the aforementioned person acquiring the goods has the right immediately to deduct the VAT thus due in that Member State?

(1) Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1).
EN Official Journal of the European Union C 55/17

Appeal brought on 24 December 2008 by Messer Group GmbH against the judgment of the Court of First Instance (First Chamber) delivered on 15 October 2008 in Case T-305/06 Air Products and Chemicals Inc. v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Case C-579/08 P)

(2009/C 55/27)

Language of the case: English

Parties

Appellant: Messer Group GmbH (represented by: W. Graf v. Schwerin and J. Schmidt, Attorneys at law)

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

Form of order sought

The appellant claims that the Court should:

— Set aside the judgment of the Court of First Instance of 15 October 2008 in joined cases T-305/06, T-306/06 and T-307/06 and dismiss the action

— Order the applicant to pay the costs, including those of the appellant and intervener,

alternatively,

— Set aside the judgment of the Court of First Instance of 15 October 2008 in joined cases T-305/06, T-306/06 and T-307/06;

— Refer the case back to the Court of First Instance;

— Reserve the costs.

Pleas in law and main arguments

The applicant submits that the Court of First Instance failed to apply correctly the criteria laid down for the proper implementation of Article 8(1)(b) of Regulation (EC) No 40/94 (1).

Furthermore the applicant submits that the contested decision of the Court of First Instance is based on a substantive inaccuracy in its findings with respect to the determination of the relevant public.

(1) Council Regulation (EC) No 40/94 of 20 December 2003 on the Community trade mark (OJ L 11, p. 1).
—

declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2005/35/EC (1) of the European Parliament and of the Council of 7 September 2005 on ship-source pollution and on the introduction of penalties for infringements, or in any event by failing to communicate them to the Commission, the United Kingdom has failed to fulfil its obligations under the Directive;
1

(a) Must Article 1(1) and (3) and Article 2(1) and (6) of Directive 89/665/EEC (1) be interpreted as meaning that they have not been complied with if the legal protection to be afforded by national courts in disputes relating to tendering procedures governed by European law is impeded by the fact that conflicting decisions may arise under a system in which both administrative courts and civil courts may have jurisdiction with respect to the same decision and its consequences? (b) Is it permissible in this context for the administrative courts to be confined to forming an opinion and ruling on the tendering decision, and if so, why and/or under what conditions? (c) Is it permissible in this context for the Algemene wet bestuursrecht (Netherlands General Law on Administrative Law), which, as a rule, governs applications for access to the administrative courts, to exclude such applications in the case of decisions concerning the conclusion of a contract by the contracting authority with one of the tenderers, and if so, why and/or under what conditions? (d) Is the answer to Question 2 of relevance in this context?
1

(a) Where a trader in certain goods or services (‘the advertiser’) avails himself of the possibility of submitting to the provider of an internet search engine an adword [when advertising via the internet, it is possible to pay to use ‘adwords’ on search engines such as Google. When such an adword is keyed into the search engine, a reference to the advertiser's website appears either in the list of webpages found, or as an advertisement on the right-hand side of the page showing the results of the search, under the heading ‘Sponsored links’] which is identical to a trade mark registered by another person (‘the proprietor’) in respect of similar goods or services, and the adword submitted — without this being visible to the search engine user — results in the internet user who enters that word finding a reference to the advertiser's website in the search engine provider's list of search results, is the advertiser ‘using’ the registered trade mark within the meaning of Article 5(1)(a) of Directive 89/104/EEC (1)? (b) Does it make a difference in that regard whether the reference is displayed — in the ordinary list of webpages found; or — in an advertising section identified as such? (c) Does it make a difference in that regard — whether, even within the reference notification on the search engine provider's webpage, the advertiser is actually offering goods or services that are identical to the goods or services covered by the registered trade mark; or — whether the advertiser is in fact offering goods or services which are identical to the goods or services covered by the registered trade mark on a webpage of his own, which internet users (as referred to in Question 1(a)) can access via a hyperlink in the reference on the search engine provider's webpage?
EN Official Journal of the European Union C 113/19

Reference for a preliminary ruling from the Amtsgericht Charlottenburg (Germany) lodged on 17 November 2008 — Amiraike Berlin GmbH Aero and Campus Cottbus Ltd.

(Case C-497/08)

2009/C 113/38

Language of the case: German

Referring court

Amtsgericht Charlottenburg

Parties to the main proceedings

Applicant: Amiraike Berlin GmbH

Other party: Aero Campus Cottbus Ltd

Question referred

Are the provisions of primary Community law, in particular, Articles 10 EC, 43 EC and 48 EC and the principle according to which Member States as between each other must accord mutual recognition to their respective legal orders to be interpreted as meaning that in ratifying Community law a Member State (‘the first Member State’) has indicated, in principle, its acceptance of the effects on its national territory of expropriatory measures imposed under the legal order of a second Member State, at any rate, where the company (created as a matter of private law) affected by the expropriatory measure previously elected on an intentional basis — exercising its Community right to freedom of establishment — to submit itself to the company law regime of the second Member State, responsible for imposing the expropriation, notwithstanding the fact that it exercises its business activities in the first Member State and holds company assets affected by the expropriatory measure situated in that State?
1.

Do Articles 3(1) and 5(5) of Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (Unfair Commercial Practices Directive) (1) or other provisions of that Directive preclude a national provision which makes it illegal to announce, offer or give bonuses, free of charge, with periodicals and newspapers, and to announce bonuses, free of charge, with other goods or services, apart from exhaustively specified exceptions, without it being necessary in any particular case to consider whether such a commercial practice is misleading, aggressive or otherwise unfair, even where that provision serves not only to protect consumers, but also serves other purposes which are not covered by the material scope of the Directive, for example, the maintenance of media diversity or the protection of weaker competitors?
EN Official Journal of the European Union C 69/28

Action brought on 21 January 2009 — Commission of the European Communities v Republic of Austria

(Case C-28/09)

(2009/C 69/51)

Language of the case: German

Parties

Applicant: Commission of the European Communities (represented by: P. Oliver, A. Alcover San Pedro and B. Schima, acting as Agents)

Defendant: Republic of Austria

Form of order sought

— declare that, by prohibiting lorries with a total weight of more than 7.5 tonnes, carrying certain goods, from being driven on a section of the A12 motorway, the Republic of Austria has failed to fulfil its obligations under Articles 28 EC and 29 EC;

— order the Republic of Austria to pay the costs.

Pleas in law and main arguments

The adoption of a sectoral prohibition against driving lorries with a total weight of more than 7.5 tonnes, loaded with certain goods, on the A12 motorway must be regarded as constituting a measure having equivalent effect to a quantitative restriction and is thus incompatible with Articles 28 EC and 29 EC. The disputed measure is neither appropriate nor necessary to achieve the improvement in air quality on the A12 required by Community law as it is not properly focused and does not take less restrictive measures, such as, for instance, permanent speed restrictions or emissions-dependent prohibitions on driving, into consideration. Furthermore, the defendant has not proved that there is a suitable alterative to road transport.
EN Official Journal of the European Union C 82/19

Appeal brought on 2 February 2009 by Lego Juris A/S against the judgment of the Court of First Instance (Eighth Chamber) delivered on 12 November 2008 in Case T-270/06 Lego Juris A/S v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), Other party before the Board of Appeal, intervener before the Court of First Instance Mega Brands, Inc.

(Case C-48/09 P)

(2009/C 82/34)

Language of the case: English

Parties

Appellant: Lego Juris A/S (represented by: V. von Bomhard, Rechtsanwältin, T. Dolde, A. Renck, Rechtsanwälte)

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

Form of order sought

The appellant claim that the Court should:

— set aside the judgment of the Court of First Instance, because it violates Article 71(1)(e)(ii)CTMR (1)

Pleas in law and main arguments

The appellant submits that the contested judgment infringes art. 7(1)(e)(ii) of the Community Trade Mark Regulation. The appellant maintains that the Court of First Instance:

a) interpreted art. 7(1)(e)(ii) CTMR in such a way as to effectively preclude any shape which performs a function from trade mark protection, independently of whether the criteria of art. 7(1)(e)(ii) CTMR as defined by the Court in the Philips/Remington decision (2) are fulfilled or not.

b) applied the wrong criteria in the identification of the essential characteristics of a three-dimensional trade mark: and

c) applied an incorrect functionality test in that it i) did not limit its assessment to the essential characteristics of the trade mark at issues and, ii) did not define the appropriate criteria for assessing whether a characteristic of a shape is functional and, in particular, refused to take into account any potential a lternative designs.

(1) OJ L 11, p. 1.

(2) Case C-299/99 Philips [2002] ECR I-5475.
EN Official Journal of the European Union C 82/15

Action brought on 22 January 2009 — Commission of the European Communities v Portuguese Republic

(Case C-30/09)

(2009/C 82/27)

Language of the case: Portuguese

Parties

Applicant: Commission of the European Communities (represented by: A. Sipos and P. Guerra e Andrade, acting as Agents)

Defendant: Portuguese Republic

Forms of order sought

— Declare that, by not drawing up external emergency plans for the establishments requiring such plans, the Portuguese Republic has failed to fulfil its obligations under Article 11 of Council Directive 96/82/EC (1) of 9 December 1996 on the control of major-accident hazards involving dangerous substances, as amended by Directive 2003/105/EC of the European Parliament and of the Council of 16 December 2003;

— Order the Portuguese Republic to pay the costs.

Pleas in law and main arguments

It is apparent from the letters sent by the Portuguese Administration to the Commission in this matter that none of the establishments required to draw up emergency plans has had its external emergency plan approved in accordance with the directive.

Article 11 of Directive 96/82 requires Member States to ensure that operators supply to the competent authorities the information necessary to draw up external emergency plans. The competent authorities must prepare such emergency plans.

Under Article 11(4) of the directive, internal and external emergency plans must be reviewed, tested, revised and updated at intervals of no longer than three years.

According to the Portuguese Administration's own information, none of those obligations has been fulfilled in Portugal.

(1) OJ 1997 L 10, p. 13.
2.

Should the answer to the first question be in the affirmative, what is the relationship between Article 19 and Article 7 of Regulation No 1768/92 when calculating the six-month period and which of those articles is it necessary to apply in a case?