ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 260/27

Request for a preliminary ruling from the Oberster Gerichtshof (Austria) lodged on 2 May 2016 — Austria Asphalt GmbH & Co OG v Bundeskartellanwalt

(Case C-248/16)

(2016/C 260/34)

Language of the case: German

Referring court

Oberster Gerichtshof

Parties to the main proceedings

Applicant: Austria Asphalt GmbH & Co OG

Defendant: Bundeskartellanwalt

Question referred

Must Article 3(1)(b) and Article 3(4) of Council Regulation (EC) No 139/2004 (1) of 20 January 2004 on the control of concentrations between undertakings (‘the Merger Regulation’) be interpreted to mean that a move from sole control to joint control of an existing undertaking, in circumstances where the undertaking previously having sole control becomes an undertaking exercising joint control, constitutes a concentration only where the controlled undertaking has on a lasting basis all the functions of an autonomous entity?

(1) Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the EC Merger Regulation) (OJ 2004 L 24, p. 1).
1.

Must Article 96(1) TFEU be interpreted as being capable of application to rates and conditions imposed by a Member State on taxi service operators where: (a) the taxi journeys concerned are only exceptionally made across national borders; (b) a significant proportion of the customers of those taxis consists of EU nationals or residents who are not nationals or residents of the Member State in question; and (c) in the specific circumstances of the case, the taxi journeys at issue are, for the passenger, very often no more than one stage in a longer trip the final destination or point of departure of which is in an EU country other than the Member State in question?
EN Official Journal of the European Union C 279/14

Request for a preliminary ruling from the Landgericht Hannover (Germany) lodged on 29 April 2016 — Heike Schottelius v Falk Seifert

(Case C-247/16)

(2016/C 279/19)

Language of the case: German

Referring court

Landgericht Hannover

Parties to the main proceedings

Applicant: Heike Schottelius

Defendant: Falk Seifert

Question referred

Can a principle of EU consumer law be derived from the second indent of Article 3[(5)] of Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees (1) to the effect that for all transactions in respect of consumer goods between non-consumers and consumers it is sufficient, in order to claim secondary rights under a warranty, that the non-consumer with warranty obligations has not completed the remedy within a reasonable time, and there is no requirement in that respect that a period of time for removing the defect be fixed expressly, and that the relevant provisions of national law, for instance also in the case of a contract for work on consumer goods, should be interpreted accordingly and if necessary applied restrictively?

(1) OJ L 171, 7.7.1999, p. 12.
EN Official Journal of the European Union C 270/32

Appeal brought on 26 May 2016 by European Commission against the judgment of the General Court (Fourth Chamber) delivered on 16/03/2016 in Case T-586/14: Xinyi PV Products (Anhui) Holdings Ltd v European Commission

(Case C-301/16 P)

(2016/C 270/36)

Language of the case: English

Parties

Appellant: European Commission (represented by: T. Maxian Rusche, L. Flynn, Agents)

Other party to the proceedings: Xinyi PV Products (Anhui) Holdings Ltd

Form of order sought

The appellant claims that the Court should:

— set aside the judgment of the General Court (Fourth Chamber) of 16 March 2016, notified to the Commission of 17 March 2016, in Case T-586/14 Xinyi PV Products (Anhui) Holdings Ltd v Commission

— reject the first limb of the first plea of the application at first instance as unfounded in law;

— refer the case for the second limb of the first plea and the second to fourth pleas of the application at first instance to the General Court for reconsideration;

— reserve the costs of the proceedings at first instance and on appeal.

Pleas in law and main arguments

The Commission maintains that the judgment under appeal should be set aside on the following grounds:

First, the General Court has misinterpreted the notion ‘carried over from the former non-market economy’ in Article 2(7)(c) third indent of Council Regulation (EC) No 1225/2009 (1) on protection against dumped imports from countries not members of the European Community. That plea comprises five limbs:

— First limb: Measures implementing the five-year plan are carried over from the former non-market economy

— Second limb: The support of strategic business sectors (‘picking winners’) does not constitute a legitimate objective in a market economy

— Third limb: Subsidies in a market economy are not open-ended, but linked to an investment

— Fourth limb: The measures under assessment are not comparable to illegal and incompatible State aid observed in the Union

— Fifth limb: Erroneous interpretation of the notion of ‘non-market economy’

Second, the judgment is vitiated by lack of reasoning and contradictory reasoning.

Third, the General Court has committed a number of procedural irregularities:

— First limb: the General Court has ruled on a matter on which it had no jurisdiction (ultra vires), has violated the principle that the subject-matter of an action is defined by the parties, and has violated Article 21 of the Statute of the Court of Justice of the European Union and Articles 44(1) and 48(2) of the Rules of Procedure of the General Court, as they were in force at the time of the introduction of the case at first instance

— Second limb: The Commission has not been heard on the alleged comparability of the State aid mentioned in the judgments quoted in paragraph 66 with the measures under assessment

— Third limb: The General Court has not answered the arguments of the Commission on the definition of ‘non-market economy’.

(1) Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community.

OJ L 343, p. 51
2.

If aid is not wholly precluded, is Article 46 of Regulation No 1698/2005 to be interpreted as meaning that, in relation to the land concerned — which is partly State owned — the private forester or private owner is entitled to aid in proportion to his share of ownership?
1.

Is a set of clauses in an agreement between a calf fattener and an integration undertaking, …, from which it follows that the single payment allocated to the calf fattener pursuant to Council Regulation (EC) No 73/2009 (1) of 19 January 2009 establishing common rules for direct support schemes for farmers under the common agricultural policy and establishing certain support schemes for farmers is payable to the integration undertaking by means of a deduction from the price for the fattened calves, valid, given the objectives of that regulation, in particular the objective of ensuring a fair standard of living for farmers by means of direct income support and the promotion of public health, animal health, the environment and animal welfare?
(c)

Italian domestic legislation (Article 3(7) of Legislative Decree No 261/99 and Article 1(276) of Law No 190/2014 — referred to as the ‘2015 Stability Law’), on the other hand, requires the national regulatory authority to allow the aforementioned derogation, within specified time limits, whenever the operator of the service so requests, relying on the ‘existence of particular situations of an infrastructural or geographical nature in territorial areas with a population density of less than 200 inhabitants per square kilometre’, even where such situations are not of an exceptional nature and affect a considerable proportion of the national population (up to one-quarter of the population and therefore — in the case of areas with low population densities — up to a far wider proportion of national territory)?
1.

Must Article 7(1) of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (1) (‘Regulation No 1215/2012’) be interpreted as meaning that, where a debtor under a (joint) credit agreement with a bank has, on his own, made the repayments due under that credit agreement, a reimbursement claim (compensation/recourse claim) brought by that debtor against the other debtor under that credit agreement constitutes a derived (secondary) contractual claim arising from that credit agreement?
EN Official Journal of the European Union C 326/12

Appeal brought on 16 June 2016 by the Portuguese Republic against the order of the General Court (Eighth Chamber) delivered on 19 April 2016 in Case T-551/15 Portugal v Commission

(Case C-338/16 P)

(2016/C 326/22)

Language of the case: Portuguese

Parties

Appellant: Portuguese Republic (represented by: L. Inez Fernandes, M. Figueiredo, P. Estêvão and J. Saraiva de Almeida, acting as Agents)

Other party to the proceedings: European Commission

Form of order sought

— Set aside the judgment under appeal in so far as, in that judgment, the General Court accepted the plea of inadmissibility raised by the Commission in the present proceedings;

— Declare that the appeal of the contested decision has been validly brought within the period laid down in Article 263 TFEU.

— Order the European Commission to pay all of the costs.

Pleas in law and main arguments

The Portuguese Republic considers that the decision is invalid on the following grounds:

A — First ground — Calculation of the time-limit for bringing proceedings against the decision of 20 July 2015

First argument

Infringement of Article 263 TFEU.

Second argument

Calculation of the time-limit for bringing proceedings from the date of notification of the final decision on 20 July 2015.

B — Second Ground — Calculation of the time-limit for bringing proceedings from the date of publication of the contested decision in the Official Journal

First argument

The wording of Article 263(6) TFEU.

Second argument

The consistent practice of publishing such decisions and identical prior legal proceedings.

C — Third Ground — The General Court erred in law in so far as it did not favour an interpretation that did not result in lapse of the right to bring proceedings
EN Official Journal of the European Union C 326/7

Appeal brought on 25 January 2016 by Min Liu against the judgment of the General Court (Third Chamber) delivered on 18 November 2015 in Case T-813/14: Liu v EUIPO

(Case C-41/16 P)

(2016/C 326/13)

Language of the case: English

Parties

Appellant: Min Liu (represented by: Y. Zhang, Rechtsanwalt)

Other party to the proceedings: European Union Intellectual Property Office (EUIPO)

By order of 8 June 2016 the Court of Justice (Eight Chamber) held that the appeal was inadmissible.
1.

Should the reduction of the obligations on the basis of an arrangement with creditors, as in the main proceedings, which has been approved by judicial decree and has acquired the force of res judicata be treated as a change in the factors used to determine the amount of input VAT to be deducted, within the meaning of Article 185(1) of the VAT Directive, (1) or should it be treated as a different situation, in which the deduction is higher or lower than that to which the taxable person was entitled, within the meaning of Article 184 of the VAT Directive?
(b)

the period between the first occupation and the supply of the building, civil engineering works or parts thereof was shorter than 2 years, insofar as point 14 of Article 2 of the Law on VAT defines first occupation as release for use of buildings, civil engineering works or parts thereof, in performance of taxable activities, to the first customer or user, following their: (a) erection or (b) upgrade, if the expenditure incurred for the upgrade, as defined in the regulations on income tax, constituted at least 30 % of the initial value?
I.

The General Court erred in law in excluding the relevance of its order of 14 February 2012 in Case T-305/08 for establishing the significance of the declaration of invalidity made in the judgment in AJD Tuna in respect of Regulation No 530/2008. In order to declare that there was no need to adjudicate in Case T-305/08, the order of 14 February 2012 interpreted the judgment in AJD Tuna as having entirely satisfied the applicant’s claim in that case, namely the request for a declaration of invalidity of Article 1 of Regulation No 530/2008. Therefore, establishing the significance of the declaration of invalidity made in the judgment in AJD Tuna forms the subject matter of the decision given in the order of 14 February 2012. It follows that, in the judgment now under appeal, the General Court should have applied the declaration of invalidity made in the judgment in AJD Tuna in respect of Regulation No 530/2008, the significance of which was established in its order of 14 February 2012 in Case T-305/08.
EN Official Journal of the European Union C 343/22

Request for a preliminary ruling from the Amtsgericht Düsseldorf (Germany) lodged on 13 May 2016 — flightright GmbH v Air Nostrum, Líneas Aéreas del Mediterráneo SA

(Case C-274/16)

(2016/C 343/33)

Language of the case: German

Referring court

Amtsgericht Düsseldorf

Parties to the main proceedings

Applicant: flightright GmbH

Defendant: Air Nostrum, Líneas Aéreas del Mediterráneo SA

Question referred

In the case where passengers are transported on a flight which consists of two connecting flights without any significant stopover at the connecting airport, is the place of arrival of the second leg of the journey to be regarded as being the place of performance under Article 7(1)(a) of Regulation (EC) No 1215/2012 (1) in the case where the claim which has been brought is directed against the air carrier which operated the first leg of the journey on which the irregularity took place and transport on the second leg of the journey was carried out by a different air carrier?

(1) Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2012 L 351, p. 1).
—

Set aside the judgment of the General Court (Sixth Chamber) of 12 May 2016 in Case T-468/14 Holistic Innovation Institute, SLU v Commission, in so far as it dismissed the claim for compensation, and instead hold that the Commission must compensate the appellant in the terms set out in the application, or, should the Court of Justice uphold the two heads of claim set out previously, refer the case back to the General Court for it to adjudicate anew on the applicant’s claim for compensation.
1.

Can Article 78(2) of Regulation (EU) No 1308/2013 (1) of the European Parliament and of the Council of 17 December 2013 establishing a common organisation of the markets in agricultural products and repealing Council Regulations (EEC) No 922/72, (EEC) No 234/79, (EC) No 1037/2001 and (EC) No 1234/2007 (‘Regulation (EU) No 1308/2013’) be interpreted as meaning that the definitions, designations and sales descriptions defined in Annex VII need not satisfy the relevant requirements of this Annex if the relevant definitions, designations and sales descriptions are expanded upon by clarifying or descriptive additions (such as ‘tofubutter’ for a pure plant-based product)?
EN Official Journal of the European Union C 383/5

Request for a preliminary ruling from the Nederlandstalige rechtbank van eerste aanleg Brussel (Belgium) lodged on 1 August 2016 — Liga van Moskeeën en Islamitische Organisaties Provincie Antwerpen and Others v Vlaams Gewest

(Case C-426/16)

(2016/C 383/06)

Language of the case: Dutch

Referring court

Nederlandstalige rechtbank van eerste aanleg Brussel

Parties to the main proceedings

Applicants: Liga van Moskeeën en Islamitische Organisaties Provincie Antwerpen, VZW, Unie van Moskeeën en Islamitische Verenigingen van Limburg, VZW, Unie van Moskeeën en Islamitische Verenigingen Oost-Vlaanderen, VZW, Unie der Moskeeën en Islamitische Verenigingen van West-Vlaanderen, VZW, Unie der Moskeeën en Islamitische Verenigingen van Vlaams-Brabant, VZW, Association Internationale Diyanet de Belgique, IVZW, Islamitische Federatie van België, VZW, Rassemblement des Musulmans de Belgique, VZW, Erkan Konak, Chaibi El Hassan

Defendant: Vlaams Gewest

Intervening party: Global Action in the Interest of Animals, VZW

Question referred

Is Article 4(4), read in conjunction with Article 2(k), of Council Regulation (EC) No 1099/2009 (1) of 24 September 2009 on the protection of animals at the time of killing invalid due to the infringement of Article 9 of the European Convention on Human Rights, Article 10 of the Charter of Fundamental Rights of the European Union and/or Article 13 of the Treaty on the functioning of the European Union, in that they provide that animals may be slaughtered in accordance with special methods required by religious rites without being stunned only if such slaughter takes place in a slaughterhouse falling within the scope of Regulation No 853/2004, (2) whereas there is insufficient capacity in the Vlaams Gewest (Flemish Region) to meet the annual demand for the ritual slaughter of unstunned animals on the occasion of the Islamic Festival of Sacrifice, and the costs of converting temporary slaughter establishments, approved and monitored by the authorities, for the purpose of the Islamic Festival of Sacrifice, into slaughterhouses falling within the scope of Regulation (EC) No 853/2004, do not appear relevant to achieving the objectives pursued of animal welfare and public health and do not appear proportionate thereto?

(1) Council Regulation (EC) No 1099/2009 of 24 September 2009 on the protection of animals at the time of killing (OJ 2009 L 303, p. 1).

(2) Regulation (EC) No 853/2004 of the European Parliament and of the Council of 29 April 2004 laying down specific hygiene rules for food of animal origin (OJ 2004 L 139, p. 55).
EN Official Journal of the European Union C 383/6

Reference for a preliminary ruling from the Court of Appeal (Ireland) made on 8 August 2016 — Florea Gusa v Minister for Social Protection, Attorney General

(Case C-442/16)

(2016/C 383/07)

Language of the case: English

Referring court

Court of Appeal

Parties to the main proceedings

Applicant: Florea Gusa

Defendants: Minister for Social Protection, Attorney General

Questions referred

1. Does an EU citizen who (1) is a national of another Member State; (2) has lawfully resided in and worked as a self employed person in a host Member State for approximately four years; (3) has ceased his work or economic activity by reason of absence of work and (4) has registered as a jobseeker with the relevant employment office retain the status of self employed person pursuant to Article 7(1)(a) whether pursuant to Article 7(3)(b) of Directive 2004/38/EC (1) or otherwise.

2. If not, does he retain the right to reside in the host Member State not having satisfied the criteria in Article 7(1) (b) or (c) of Directive 2004/38/EC or is he only protected from expulsion pursuant to Article 14(4) (b) of Directive 2004/38/EC.

3. If not, in relation to such a person is a refusal of a jobseeker’s allowance (which is a non-contributory special benefit within the meaning of Article 70 of Regulation 883/2004/EC (2)) by reason of a failure to establish a right to reside in the host Member State compatible with EU law, and in particular Article 4 of Regulation 883/2004/EC.

(1) Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC OJ 2004 L 158, p. 77

(2) Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems OJ 2004L 166, p. 1
1.

May an action for infringement of an EU trade mark (Article 96(a) of Regulation (EC) No 207/2009, (1) as amended by Regulation (EU) 2015/2424) be dismissed on the ground of an objection that the trademark application was filed in bad faith (Article 52(1)(b) of Regulation (EC) No 207/2009, as amended by Regulation (EU) 2015/2424) if, despite the defendant having brought a well-founded counterclaim for a declaration of invalidity of the EU trade mark (Article 99(1) of Regulation (EC) No 207/2009, as amended by Regulation (EU) 2015/2424), the court has not yet ruled on that counterclaim?
11.

The General Court erred in law in assessing the evidence, and in any event, failed to fulfil its duty to exercise its powers of unlimited jurisdiction, by considering that the appellant had not provided the Commission with the information necessary to evaluate the assets of its shareholders. In addition, the General Court failed to state reasons since it did not explain why the Deloitte reports relied on by the appellant lacked evidential value.
4.

If Question 3 is answered in the affirmative: Which measures must the supplier of a product that fundamentally infringes the design at issue take in order to objectively ensure that his product can be purchased exclusively for repair purposes and not for other purposes as well, such as the upgrading or customisation of the product as a whole? Is it enough: (a) that the supplier includes a note in the sales brochure to the effect that any sale takes place exclusively for repair purposes so as to restore the original appearance of the product as a whole; or (b) is it necessary that the supplier make delivery conditional on the customer (traders and consumers) declaring in writing that the product supplied is to be used for repair purposes only?
EN Official Journal of the European Union C 410/8

Request for a preliminary ruling from the Corte d’appello di Genova (Italy) lodged on 11 August 2016 — Kerly Del Rosario Martinez Silva v Istituto nazionale della previdenza sociale (INPS), Comune di Genova

(Case C-449/16)

(2016/C 410/08)

Language of the case: Italian

Referring court

Corte d’appello di Genova

Parties to the main proceedings

Applicant: Kerly Del Rosario Martinez Silva

Defendants: Istituto nazionale della previdenza sociale (INPS), Comune di Genova

Questions referred

1) Does a benefit such as that provided for in Article 65 of Law No 448/1998, known as ‘assegno ai nuclei familiari con almeno tre figli minori’ (allowance for households with at least three minor children), constitute a family benefit within the meaning of Article 3(1)(j) of Regulation (EC) No 883/2004? (1)

2) If the answer to the first question is in the affirmative, does the principle of equal treatment laid down in Article 12(1)(e) of Directive 2011/98/EU (2) preclude legislation, such as the Italian legislation at issue, under which a third-country worker in possession of a ‘single work permit’ (which is valid for a period of more than six months) is not eligible for the ‘assegno per i nuclei familiari con almeno tre figli minori’, even though she lives with three or more minor children and her income is below the statutory limit?

(1) Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems (OJ 2004 L 166, p. 1).

(2) Directive 2011/98/EU of the European Parliament and of the Council of 13 December 2011 on a single application procedure for a single permit for third-country nationals to reside and work in the territory of a Member State and on a common set of rights for third-country workers legally residing in a Member State (OJ 2011 L 343, p. 1).