ddrg/super_eurlex huggingface dataset:
1.

Is Article 28 EC to be interpreted as meaning that it precludes the application per se of national provisions which oblige only importers of German language books to fix and to publish a retail price for books imported into Austria which is binding on the retailer, where the importer cannot fix a retail price which is lower than the retail price fixed or recommended by the publisher for the State in which the book is published, or lower than the retail price recommended for his national territory by a publisher whose seat is not in the territory of a Contracting Party to the Agreement on the European Economic Area (EEA), less any value added tax such price includes, but, by way of exception, permit an importer who purchases in the territory of a Contracting Party to the EEA at a price lower than the usual purchase prices to sell at less than the price fixed or recommended by the publisher for the State of publication — or in the case of re-imports the price fixed by the Austrian publisher — by an amount proportionate to the commercial advantage he has obtained?
1.

In light of the fact that the registration requirements in Title II of the REACH Regulation (1) do not apply to polymers by virtue of Article 2(9) of the Regulation, does the reference to ‘monomer substances’ in Article 6(3) mean: (a) reacted monomers, that is monomers which have reacted together such that they are indissociable from the polymer of which they form part; (b) unreacted monomers, that is monomers that are residual to the polymerisation process and which retain their own chemical identities and properties separate from the polymer after that process is complete; or (c) both reacted and unreacted monomers?
EN Official Journal of the European Union C 37/3

Action brought on 14 November 2007 — Commission of the European Communities v Czech Republic

(Case C-496/07)

(2008/C 37/03)

Language of the case: Czech

Parties

Applicant: Commission of the European Communities (represented by: G. Rozet and M. Šimerdová, acting as Agents)

Defendant: Czech Republic

Form of order sought

— Declare that, in so far as Czech domestic legislation reserves the exercise of the post of captain of a ship flying the Czech flag to persons with Czech nationality, the Czech Republic has failed to fulfil its obligations under Article 39 of the EC Treaty;

— Order the Czech Republic to pay the costs.

Pleas in law and main arguments

In the above action the Commission relies on the following pleas:

Czech domestic legislation (Law No 61/2000) places the operator of a ship under an obligation to ensure that the master of a ship flying the Czech flag is a citizen of the Czech Republic.

That clear and completely unconditional requirement to have Czech nationality, in the opinion of the Commission of the European Communities, conflicts with the findings reached by the Court of Justice of the European Communities in Case C-405/01 (1) and C-47/02 (2). The Commission draws attention in particular to the findings in paragraph 44 of the judgment in Case C-405/01 and paragraph 63 of the judgment in Case C-47/02. The requirement laid down in Czech law that the master of a ship must be of Czech nationality is absolute. The relevant provisions of Czech law do not take into account the way in which and extent to which the master of a ship in reality exercises the powers conferred by public law, as required by the abovementioned case-law of the Court of Justice of the European Communities. The mere fact that Czech law entrusts masters of ships flying the Czech flag with powers which fall within the ambit of powers conferred by public law is not enough to warrant use of the derogation from the freedom of movement for workers laid down in Article 39(4) of the EC Treaty.

The Commission of the European Communities is of the opinion that the Czech Republic is under an obligation to bring its domestic legislation into conformity with the case-law of the Court of Justice of the European Communities, notwithstanding the fact that (according to the statements of the Czech Republic) there are currently no ships flying the Czech flag.

(1) Case C-405/01 Colegio de Oficiales de la Marina Mercante Espagñola v Administración del Estado [2003] ECR I-10391, concerning Spanish legislation reserving the post of master and chief mate on ships flying the Spanish flag to persons with Spanish nationality.

(2) Case C-47/02 Albert Anker, Klaas Ras a Albertus Snoek v Federal Republic of Germany [2003] ECR I-10447, concerning German legislation reserving the post of captain on ships flying the German flag and engaged in small-scale maritime shipping (‘Kleine Seeschiffahrt’) to persons with German nationality.
2.

If the first question is answered in the affirmative: Is Article 8(3) of Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights (2), having regard to Article 6 and Article 15 of Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector, to be interpreted (restrictively) as not permitting the disclosure of personal traffic data to private third parties for the purpose of civil proceedings for alleged infringements of exclusive rights protected by copyright (rights of exploitation and use)?
1.

Is the fact that the State reserves to itself the ‘right to run games of luck or chance’ (Article 9 of DL 422/89 of 2 December, amended by DL 10/95 of 19 January 1995 and by DL 40/2005 of 17 February 2005) and the right to ‘organise pool betting systems’ (Article 1 of DL 84/85 of 17 December 1985, amended by DL 317/2002) compatible with the rules of Community law … laying down the principles of the freedom to provide services, free competition and prohibition of State monopolies?
EN Official Journal of the European Union C 92/18

Reference for a preliminary ruling from the Hoge Raad der Nederlanden lodged on 7 February 2008 — M. Ilhan v Staatssecretaris van Financiën

(Case C-42/08)

(2008/C 92/33)

Language of the case: Dutch

Referring court

Hoge Raad der Nederlanden

Parties to the main proceedings

Appellant: M. Ilhan

Respondent: Staatssecretaris van Financiën

Question referred

Do the provisions of the EC Treaty on the freedom to provide services (Articles 49 EC to 55 EC) or the principle of proportionality preclude a Member State from applying a statutory rule that requires a person who is resident or established in that Member State, and who has at his disposal a car registered in another Member State which has been leased for a period of three years by a leasing undertaking established in that other Member State, and who uses that car essentially in the first Member State for business and private purposes, to pay a tax on the basis of commencement of use (with that car) of the public highway in the first Member State, without account being taken of the duration of future actual use in that Member State?
—

declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2003/59/EC of the European Parliament and 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 communicate them to the Commission, Ireland has failed to fulfil its obligations under the Directive;
—

declare that, by failing to adopt all the laws, regulations and administrative provisions necessary to comply with Directive 2006/49/EC (1) of the European Parliament and of the Council of 14 June 2006 on the capital adequacy of investment firms and credit institutions and in particular the following: Article 17, Article 72, Article 22 to 25, Article 30, Article 33, Article 35, Article 40, Article 41, Article 43, Article 44, Article 50, Annexes I and II, Annex VII, and, in any event, by failing to communicate those provisions to the Commission, the Kingdom of Spain has failed to fulfil its obligations under the directive.
EN Official Journal of the European Union C 128/22

Reference for a preliminary ruling from the Juzgado de lo Mercantil no 7 de Madrid (Spain) lodged on 4 March 2008 — Asociación de Gestión de Derechos Intelectuales (AGEDI) and Asociación de Artistas Intérpretes o Ejecutantes — Sociedad de Gestión de España (AIE) v Sogecable S.A. and Canal Satélite Digital S.L.

(Case C-98/08)

(2008/C 128/39)

Language of the case: Spanish

Referring court

Juzgado de lo Mercantil no 7 de Madrid

Parties to the main proceedings

Applicants: Asociación de Gestión de Derechos Intelectuales (AGEDI) and Asociación de Artistas Intérpretes o Ejecutantes — Sociedad de Gestión de España (AIE)

Defendants: Sogecable S.A. and Canal Satélite Digital S.L.

Question referred

Does Community law and, in particular, Council Directive 92/100/EEC (1) of 19 November 1992 on rental right and lending right and on certain rights related to copyright in the field of intellectual property permit the Member States to adopt a provision like Article 109.1 of Law 22/1987 of 11 November on Intellectual Property, which recognises the exclusive right of producers of phonograms published for commercial purposes to authorise the public communication of those phonograms and copies thereof?

(1) OJ 1992 L 346, p. 61.
EN Official Journal of the European Union C 116/15

Action brought on 6 March 2008 — Commission of the European Communities v Portuguese Republic

(Case C-105/08)

(2008/C 116/26)

Language of the case: Portuguese

Parties

Applicant: Commission of the European Communities (represented by R. Lyal and M. Afonso, Agents)

Defendant: Portuguese Republic

Form of order sought

— A declaration that, by taxing payment of interest abroad more heavily than payment of interest to entities resident in Portuguese territory, the Portuguese Republic imposes restrictions on the provision of mortgage and other loan services by financial institutions resident in other Member States and in States party to the EEA Agreement, and it has therefore failed to fulfil its obligations under Articles 49 EC and 56 EC and Articles 36 and 40 of the EEA Agreement;

— an order that the Portuguese Republic should pay the costs.

Pleas in law and main arguments

The Código do Imposto sobre o Rendimento das Pessoas Colectivas (CIRC) (the Corporation Tax Code) provides for different tax treatment of income relating to interest paid to financial institutions, depending on whether they are resident or not in Portuguese territory.

The taxation applicable in Portugal to interest paid to non-resident financial institutions leads to a far heavier real tax burden than that borne by resident taxpayers in respect of similar income. The national legislation thus dissuades non-resident financial institutions from offering their services on the Portuguese market, in particular mortgage loan services, and prevents persons resident in Portugal from gaining access to the loan services that might be offered them by those institutions. Such legislation therefore constitutes a restriction of the fundamental freedoms enshrined in Articles 49 EC and 56 EC and in the corresponding provisions of the EEA Agreement.
3.

Does the fact that Regulation No 1346/2000 is not binding on and is not applicable in Denmark mean that other Member States are not to apply that Regulation in respect of the recognition and enforcement of judicial declarations of insolvency handed down in that country, or, on the other hand, that other Member States are obliged, unless they have made derogations, to apply that Regulation when the judicial declaration of insolvency is handed down in Denmark and is presented for recognition and enforcement in other Member States, in particular, in Spain?
EN Official Journal of the European Union C 128/22

Action brought on 3 March 2008 — Commission of the European Communities v Kingdom of Belgium

(Case C-100/08)

(2008/C 128/40)

Language of the case: Dutch

Parties

Applicant: Commission of the European Communities (represented by: S. Pardo Quintillan and R. Troosters, acting as Agents)

Defendant: Kingdom of Belgium

Form of order sought

The Commission claims that the Court should,

1. Declare that the Kingdom of Belgium has failed to fulfil its obligations under Article 28 of the Treaty establishing the European Community by — making the import, keeping and sale of specimens of birds born and bred in captivity that were brought to the market legally in other Member States subject to restrictive conditions that require the market participants concerned to alter the marking of the birds so as to comply with the special Belgian requirements, and failing to recognise the marking recognised in other Member States or the certificates issued for this purpose by the CITES authorities; — denying traders the possibility to receive exemptions from the prohibition to keep indigenous European birds which were brought to the market legally in other Member State.

2. Order the Kingdom of Belgium to pay the costs.

Pleas in law and main arguments

The Royal Decree of 9 September 1981 on the protection of birds in the Flemish Region and the Royal Decree of 26 October 2001 on measures concerning the import, export and transit of certain species of non-indigenous wild birds contain provisions pursuant to which (1) the import, keeping and sale of specimens of birds born and bred in captivity that were brought to the market legally in other Member States are subject to restrictive conditions, and (2) traders are denied the possibility to receive exemptions from the prohibition to keep indigenous European birds that were brought to the market legally in other Member States.

The Commission submits that those measures constitute measures having equivalent effect to quantitative restrictions and are therefore, as a matter of principle, prohibited under Article 28 EC. First, the conditions created by the Belgian legal provisions have the effect of requiring changes to the manner in which specimens of birds that were brought to the market legally in other Member States are presented and, second, trade is also restricted as a result of the prohibition on traders to keep certain birds that were brought to the market legally in other Member States.

The Commission does not exclude in general that certain restrictions on trade can be justified in this context under Article 30 EC if they aim to protect rare species with specific characteristics. However, this is not what the Belgian legal provisions aim to do. In addition, the Belgian provisions are neither necessary nor proportionate to, where required, achieve such a legitimate aim.
2.

If question 1 is answered in the affirmative, where there is an equivalent legal measure under national law, within the meaning of clause 5(1) of the Framework Agreement, which existed before Directive 1999/70/EC entered into force, such as Article 8(3) of Law 2112/1920 at issue in the main proceedings, is the adoption of a legal measure by reason of the application of the Framework Agreement, such as Article 11 of Presidential Decree 164/2004 at issue in the main proceedings, an unacceptable reduction in the general level [of protection] afforded to fixed-term workers under national law within the meaning of clause 8(1) and (3) of the Framework Agreement: (a) when the legal measure in question applying the Framework Agreement was adopted after the time-limit for transposing Directive 1999/70/EC had elapsed, but only fixed-term employment contracts and relationships which were in effect before its entry into force or had expired within a certain period before its entry into force but after the time-limit for transposing the Directive had elapsed fall within its chronological scope, although the equivalent legal measure which already existed does not have a chronologically restricted scope of application and covers all fixed-term employment contracts which had been concluded, were in effect or had expired when Directive 199/70/EC came into force and the time-limit for its transposition had elapsed; (b) when fixed-term employment contracts or relationships only fall within the scope of application of the legal measure in question applying the Framework Agreement if they can be regarded as successive within the meaning of that measure, satisfying the cumulative requirements: (i) that there is a maximum period of three months between them; (ii) that they extend for a total of at least 24 months before the measure in question enters into force, irrespective of the number of contract renewals or that, on the basis of those renewals, there has been a minimum total period of work of 18 months over an overall period of 24 months from the original contract, provided that there are at least three renewals since the original contract, whereas the existing equivalent legal measure does not lay down such conditions but covers all the fixed-term (successive) employment contracts, irrespective of a minimum total period of work and a minimum number of contract renewals; (c) when the legal measure in question applying the Framework Agreement provides as a legal consequence for the protection of fixed-term workers and the prevention of abuse, within the meaning of the Framework Agreement on fixed-term work, for the qualification thereafter (ex nunc) of fixed-term employment contracts as contracts of indefinite duration, whereas the pre-existing legal measure provides for the qualification of fixed-term contracts as contracts of indefinite duration from the time they were originally concluded (ex tunc)?
EN Official Journal of the European Union C 171/24

Action brought on 25 April 1998 — Commission of the European Communities v Portuguese Republic

(Case C-171/08)

(2008/C 171/36)

Language of the case: Portuguese

Parties

Applicant: Commission of the European Communities (represented by E. Montaguti, P. Guerra e Andrade and M. Telles Romão, acting as Agents)

Defendant: Portuguese Republic

Form of order sought

— A declaration that, by maintaining special rights for the State and other public bodies in Portugal Telecom S.A., attributed in connection with the State's golden shares (preferential shares) in Portugal Telecom S.A, the Portuguese Republic has failed to fulfil its obligations under Articles 56 and 43 EC;

— an order that the Portuguese Republic should pay the costs.

Pleas in law and main arguments

The Portuguese State holds 500 golden shares in Portugal Telecom S.A. (PT). Those shares give the State the right of veto in respect of resolutions for the election of the officers of the General Assembly, the election of the Chairman of the Audit Committee and of the Official Auditor, the application of profit and loss accounts, alteration of the memorandum and articles of association, increase in capital, restriction and removal of preferential rights, issue of bonds and other real property, the fixing of the general aims and fundamental principles of the company's policies, defining of the general policy principles for participation in other companies, authorisation of change of the company seat and authorisation of the purchase of shares representing more than 10 % of share capital by shareholders carrying on, directly or indirectly, an activity in competition with that of the companies controlled by PT, and the right of veto in respect of a third of the total number of directors, including, necessarily, the Chairman of the Board of Directors.

The Commission is of the view that such rights of veto constitute restrictions of movements of capital and of freedom of establishment. Such measures amount to an impediment to direct investment in PT, an impediment to portfolio investment and an impediment to the exercise of freedom of establishment.

Those special rights of the State constitute State measures, for the golden shares are not a consequence of a normal application of company law.

The golden shares have nothing to do with lawful objectives of public interest or, especially, with those pleaded by the Portuguese State, viz., public order and safety, maintaining of cable and copper networks and maintaining of wholesale and retail activity within PT, public service concessions, the pattern for regulating the market in telecommunications and any disturbance of the capital market.

In any case, the Portuguese State has not observed the principle of proportionality, for the measures at issue are not apt to ensure that the objectives pursued are attained and they go beyond what is necessary in order to attain those objectives.
—

Declare that by failing to adopt all the laws, regulations and administrative provisions necessary to comply with Council Directive 2006/100/EC of 20 November 2006 adapting certain Directives in the field of freedom of movement of persons, by reason of the accession of Bulgaria and Romania (1), or, in any event, by not informing the Commission thereof, the Kingdom of Belgium has failed to fulfil its obligations under Article 2 of that directive;
EN Official Journal of the European Union C 183/15

Appeal brought on 21 May 2008 by Sebirán, SL against the judgment delivered on 12 March 2008 in Case T-332/04 Sebirán, SL v OHIM and El Coto de Rioja, SA

(Case C-210/08 P)

(2008/C 183/29)

Language of the case: Spanish

Parties

Appellant: Sebirán, SL (represented by: J. Calderón Chavero and T. Villate Consonni)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) and El Coto de Rioja, SA

Form of order sought

— Annulment of the judgment of the Court of First Instance (Fourth Chamber) of 12 March 2008 in Case T-332/04 on the ground that the trade marks EL COTO/COTO DE IMAZ, on the one hand, and COTO D'ARCIS, on the other, are clearly compatible;

— Order for payment of costs.

Pleas in law and main arguments

Challenge to the assessment of the Court of First Instance: Sebirán considers that the Community trade mark COTO D'ARCIS does not infringe the prohibition of Article 8(1)(b) of Regulation No 40/94 (1) since upon opposition of the proprietor of an earlier mark, in this case the Community marks EL COTO and COTO DE IMAZ, the refusal to register the most recent is not appropriate because it is sufficiently dissimilar, for the purposes of that prohibition, to the earlier marks, notwithstanding that the goods or services covered by both marks are identical or similar, considering the whole and not the separate components, when in addition there is no possibility of a likelihood of confusion on the part of the public of the whole territory of the European Union. The likelihood of confusion does not include the risk of association with the earlier mark.

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1).