ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 175/5

Request for a preliminary ruling from the Landgericht Hamburg (Germany) lodged on 25 January 2016 — Irene Uhden v KLM Royal Dutch Airlines N.V.

(Case C-40/16)

(2016/C 175/03)

Language of the case: German

Referring court

Landgericht Hamburg

Parties to the main proceedings

Applicant: Irene Uhden

Defendant: KLM Royal Dutch Airlines N.V.

Question referred

Is the second sentence of Article 7(1) of Regulation (EC) No 261/2004 (1) of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 (‘the air passenger rights regulation’) to be interpreted as meaning that the concept of ‘distance’ relates only to the direct distance between the point of departure and the last destination, regardless of the distance actually flown in the individual case?

(1) OJ 2004 L 46, p. 1.
1.

The General Court erred in law in its interpretation and application of Article 107(1) TFEU as regards the notions of ‘undertakings’ and ‘selective advantage’; in its interpretation and application of the duty to state reasons; and in its distortion of the contested decision as regards selectivity. — The General Court erred in law and distorted the decision in misinterpreting the selective nature of a tax advantage reserved for undertakings which pursue a particular economic activity and which were set up by the economic interest grouping (EIG) and their partners; and in incorrectly characterising the reasons given. — The General Court erred in law in its analysis of the selective advantage resulting from discretionary power on the part of the national tax authorities. — The General Court erred in law in its interpretation of the notion of ‘selectivity’ by excluding selectivity with regard to a measure reserved for taxable persons making certain investments.
6.

If the reply to the previous question is in the affirmative and if the laws of the Member State link the obligation to pay value added tax on importation of goods, in general, to the procedure under which goods may be released for free circulation, are Articles 201, 202 and 205 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax to be interpreted as meaning that the Member State is required to declare jointly and severally liable for payment of value added tax all those persons who, in the specific circumstances, may be regarded as liable for the customs debt under Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code?
2.

Does EU law, in particular Articles 56, 101, 102 and 106 TFEU, Article 9 of Directive 2002/21/EC (‘the Framework Directive’), Articles 3, 5 and 7 of Directive 2002/20/EC (‘the Authorisation Directive’) and Articles 2 and 4 of Directive 2002/77/EC (‘the Competition Directive’) and the principles of non-discrimination, transparency, freedom of competition, proportionality, effectiveness and pluralism of information preclude a provision of national law which, for the purposes of determining the number of digital networks to be allocated to operators for the conversion of analogue networks takes account of all the analogue networks operated until that point, including those operated in breach of the anti-concentration thresholds laid down by rules of national law that have already been the subject of adverse criticism by the Court of Justice or the European Commission or, in any event, those operated without being granted the necessary rights, and which has the actual effect of reducing the number of digital networks allocated to a multi-network operator, by comparison with those operated under the analogue system, to an extent which is proportionally greater than the reduction imposed on competitors?
EN Official Journal of the European Union C 200/8

Request for a preliminary ruling from the Gerechtshof Amsterdam (Netherlands) lodged on 14 March 2016 — Aramex Nederland BV v Inspecteur van de Belastingdienst/Douane

(Case C-145/16)

(2016/C 200/12)

Language of the case: Dutch

Referring court

Gerechtshof Amsterdam

Parties to the main proceedings

Applicant: Aramex Nederland BV

Defendant: Inspecteur van de Belastingdienst/Douane

Question referred

Is Commission Implementing Regulation (EU) No 301/2012 of 2 April 2012 (1) concerning the classification of certain goods in the Combined Nomenclature valid?

(1) OJ 2012 L 99, p. 19.
EN Official Journal of the European Union C 191/12

Request for a preliminary ruling from the Commissione Tributaria Regionale di Milano (Italy) lodged on 2 March 2016 — Stanleybet Malta Ltd and Mario Stoppani v Agenzia delle dogane e dei Monopoli

(Case C-141/16)

(2016/C 191/15)

Language of the case: Italian

Referring court

Commissione Tributaria Regionale di Milano

Parties to the main proceedings

Appellants: Stanleybet Malta Ltd, Mario Stoppani

Respondent: Agenzia delle dogane e dei Monopoli

Question referred

Do Articles 56 and 52 of the Treaty on the Functioning of the European Union, having regard also to the case-law of the Court of Justice of the European Union itself, on gambling and betting services such as the judgments in Gambelli, Placanica and Costa and Cifone, on tax discrimination such as the judgments in Lindman, Commission v Spain, and Bianco and Fabretti, and to the EU law principles of equal treatment, non-discrimination and legitimate expectations, preclude national legislation such as the Italian legislation, under consideration in the present dispute, which makes national intermediaries transmitting gambling data on behalf of betting operators, established in a different EU Member State, in particular, those sharing the characteristics of the company Stanleybet Malta Ltd, and possibly, those betting operators, jointly with their national intermediaries, liable, even retrospectively, to the Single Tax on betting and pools provided for in Articles 1 to 3 of Legislative Decree No 504 of 23 December 1998, as amended by Article 1(66)(b) of the Stability Law 2011?
Appeal brought on 12 February 2016 by Continental Reifen Deutschland GmbH against the judgment of the General Court (Seventh Chamber) delivered on 8 December 2015 in Case T-525/14: Compagnie générale des établissements Michelin v European Union Intellectual Property Office

(Case C-84/16 P)

(2016/C 211/28)

Language of the case: English

Parties

Appellant: Continental Reifen Deutschland GmbH (represented by: S. O. Gillert, K. Vanden Bossche, B. Köhn-Gerdes, J. Schumacher, Rechtsanwälte)

Other parties to the proceedings: European Union Intellectual Property Office, Compagnie générale des établissements Michelin

Form of order sought

The appellant claims that the Court should:

— set aside the judgement of the General Court of 8. December, 2015, in Case T-525/14 in its entirety;

— remit the case back to the General Court in order to re-examine the inherent degree of distinctiveness of the signs in dispute, including of the elements of which these signs are composed of, as well as the degree of similarity between these signs, and to,

— order the defendant to bear the costs including the costs incurred by the Appellant.

Pleas in law and main arguments

The appeal is based on an infringement of Union law by the General Court in so far as the General Court in its judgment of 8. December 2015 infringed Article 8 (1) (b) of Council Regulation No. 207/2009 (1) on the Community trade mark.

In summary, the General Court erred in its assessment of the distinctiveness of the contested CTM application ‘ ’, including of the elements ‘ ’ and ‘ ’ of which this sign is composed, and of the earlier trade mark ‘ ’. In addition, this incorrect assessment of the General Court was also based on a distortion of the facts regarding the language knowledge of the relevant public and their understanding of the meaning of the elements of the signs in dispute as well as of the evidence submitted by the defendant as Annex C.1 and Annex C.4, currently submitted as Annex 6.

Furthermore, the General Court failed to provide reasons as to why certain aspects of the signs in dispute, e.g. their figurative elements, were not considered in in the assessment of the similarity of signs.

On the basis of these incorrect assessments, the General Court erroneously held that in view of the strong similarity or identity of the goods covered, the average degree of similarity between the mark applied for and the earlier French trade mark and the normal inherent distinctiveness of that earlier trade mark there is a likelihood of confusion pursuant to Article 8 (1) (b) CTMR.

(1) Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark OJ L 78, p. 1
(4)

distortion of the facts and infringement of the right to be heard so far as concerns the finding that the contested measure’s reasoning ‘does not refer at all to the issue whether any aid in the form of the arbitral award is of State origin’ and manifest error of assessment so far as concerns the finding that the legal defects in the contested measure which are put forward by DEI ‘will necessarily be assessed in … Case T-352/15’;
(2)

If the worker does not take all or some of the annual leave to which he is entitled in the leave year when any right should be exercised, in circumstances where he would have done so but for the fact that the employer refuses to pay him for any period of leave he takes, can the worker claim that he is prevented from exercising his right to paid leave such that the right carries over until he has the opportunity to exercise it?
1.

Does the situation in the present case amount to a transfer of an undertaking or business, where the defendant, ‘ICTS’, has been transferred to the defendant, ‘SECURITAS’, following a public call for tenders in which the successful bidder, ‘SECURITAS’, was awarded a contract for the provision of security guard services at the Ponta Delgada port in the island of São Miguel, Azores, and does that situation amount to a transfer of an economic entity for the purposes of Article 1(1)(a) of Council Directive 2001/23/EC (1) of 12 March 2001?
5.

Are Article 4(1)(a) and Article 28(3) and (6) of Directive 95/46/EC to be interpreted as meaning that, in cases in which the supervisory authority in one Member State (in this case, Germany) takes action against a person or entity in its territory pursuant to Article 28(3) of Directive 95/46/EC on the grounds of failing to exercise due care in choosing a third party involved in the data processing process (in this case, Facebook), because this third party is in violation of data protection legislation, the active supervisory authority (in this case, Germany) is bound by the appraisal of data protection legislation by the supervisory authority of the Member State in which the third party responsible for the data processing has its establishment (in this case, Ireland) meaning that it may not arrive at a different legal appraisal, or may the active supervisory authority (in this case, Germany) conduct its own examination of the lawfulness of the data processing by the third party established in another Member State (in this case, Ireland) as a preliminary question prior to its own action?
—

paragraphs 48 to 52, inasmuch as Article 36 and point 1 of Annex VII to the Act of Accession of the RC to the EU came into force on 9 December 2011 when the Judicial Reform Strategy of the Republic of Croatia for the period 2011-2015 and the Revised Action Plan of the Government of the Republic of Croatia for Judicial Reform were in force and applicable from 15 December 2010 and 20 May 2010, respectively, and, consequently, after the repeal of those legal acts by the RC — which acts had been previously expressly authorised by the Commission in section 3 of the Comprehensive Monitoring Report on the RC of 10 October 2012 in which the RC was urged to adopt new legislation on enforcement — and contrary to the general principles of law on the protection of legitimate expectations and legal certainty, since with regard to the appellants the repeal of the legal acts referred to had an obvious retroactive effect in that after 9 December 2012 the RC did not adopt any new judicial reform strategy but merely a Strategy for the Development of the Judicial System for the period 2013-2018, and, therefore, the last Judicial Reform Strategy in fact adopted by the Republic of Croatia was that in force on 9 December 2011 (see judgment of the Court of Justice of 30 January 1974 in Louwage v Commission, 148/73, paragraphs 12 and 28; judgment of the General Court of 17 December 1998 in Embassy Limousines & Services v Parliament, T-203/96, paragraphs 74 to 88; and judgment of the Court of Justice of 14 May 1975 in CNTA v Commission, 74/74, paragraphs 41 to 44), it being noted that the General Court recognises, in paragraph 53 of the judgment under appeal, in stating that ‘it may not be inferred that the Croatian authorities … were entirely free to amend the Judicial Reform Strategy 2011-2015 and the Action Plan 2010. Having regard to the provisions of the Act of Accession and, in particular, Article 36 thereof and Annex VII thereto, those authorities were obliged to comply not only with Commitment No 1, but also with all the other commitments set out in that annex’, the pertinence of the claim for damages that is set out in the application;
2.

If, to preserve a right of action, a complaint must be made in writing in due time, is Article 31(3) of the Montreal Convention to be interpreted as meaning that the requirement of writing may be fulfilled in an electronic procedure and also by the registration of the damage in the information system of the carrier?
EN Official Journal of the European Union C 260/25

Appeal brought on 27 April 2016 by Industrias Químicas del Vallés, S.A. against the order of the General Court (Third Chamber) delivered on 16 February 2016 in Case T-296/15, Industrias Químicas del Vallés, S.A. v Commission

(Case C-244/16 P)

(2016/C 260/32)

Language of the case: Spanish

Parties

Appellant: Industrias Químicas del Vallés, S.A. (represented by: C. Fernández Vicién, I. Moreno-Tapia Rivas and C. Vila Gisbert, abogadas)

Other party to the proceedings: European Commission

Form of order sought

The appellant claims the Court should:

— set aside the order of the General Court of the European Union of 16 February 2016 in Case T-296/15, Industrias Químicas del Vallés, S.A. (IQV) v European Commission;

— declare as admissible IQV’s application for annulment of Commission Implementing Regulation (EU) 2015/408; (1)

— refer the case back to the General Court of the European Union in order to rule on the substance of Case T-296/15;

— order the European Commission to pay the costs of these proceedings.

Pleas in law and main arguments

(i) The General Court erred in law in holding, in the order under appeal, that the contested regulation is a regulatory act which includes, as regards the applicant, implementing measures for the purposes of Article 263(4) of the Treaty on the Functioning of the European Union.

(ii) The General Court erred in law in holding, in the order under appeal, that the inadmissibility of IQV’s action against the contested regulation did not deprive it of an effective judicial remedy.

(iii) The General Court erred in law in holding, in the order under appeal, that IQV was not individually affected by the contested regulation.

(1) Commission Implementing Regulation (EU) 2015/408 of 11 March 2015 on implementing Article 80(7) of Regulation (EC) No 1107/2009 of the European Parliament and of the Council concerning the placing of plant protection products on the market and establishing a list of candidates for substitution (OJ L 67, p. 18).
4.

Must Article 109(1)(a) of Regulation No 207/2009 be interpreted as meaning that when a ‘court other than the court first seised’ of a Member State is seised of an ‘action for infringement’ of an EU trade mark on account of the maintenance of worldwide, and therefore also EU-wide, identical online content on the internet domain names ‘facebook.com’ and/or ‘youtube.com’ and/or ‘twitter.com’, each — as regards the relevant domain names of ‘facebook.com’ and/or ‘youtube.com’ and/or ‘twitter.com’ — under the same username, and claims have been put forward to it under Article 97(2) and Article 98(1)(a) of Regulation No 207/2009 in relation to acts of infringement committed or threatened within the territory of any of the Member States, it must decline jurisdiction under Article 109(1)(a) of Regulation No 207/2009 only for the territory of the other Member State in which a court was ‘first’ seised of a claim for infringement of a national trade mark (which is identical to and covers identical goods as the EU trade mark asserted before the ‘court other than the court first seised’) through the maintenance and use of the same worldwide, and therefore also EU-wide, identical online content on the internet domain names ‘facebook.com’ and/or ‘youtube.com’ and/or ‘twitter.com’, each — as regards the relevant domain names ‘facebook.com’ and/or ‘youtube.com’ and/or ‘twitter.com’ — under the same username, to the extent that both the marks themselves and the goods and services covered are identical, or in such a situation must the ‘court other than the court first seised’, to the extent that the marks themselves and the goods and services covered are identical, decline jurisdiction with regard to all claims put before it under Article 97(2) and Article 98(1)(a) of Regulation No 207/2009 in relation to the acts of infringement committed or threatened within the territory of any of the Member States and therefore in relation to EU-wide claims?
2.

Are national rules which allow a commercial undertaking to provide private individuals with so-called cloud computing services for the remote video recording of private copies of works protected by copyright, even where the active involvement of that commercial undertaking in the recording is entailed, and even without the rightholder’s consent, against a flat-rate compensation in favour of the rightholder, in essence subjecting the services to a compulsory licensing system, compatible with EU law, in particular with Article 5(2)(b) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (as well as Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market and the founding Treaty)?
EN Official Journal of the European Union C 296/22

Request for a preliminary ruling from the Conseil d’État (Council of State) (France) lodged on 13 June 2016 — Syndicat national de l’industrie des technologies médicales (SNITEM) and Philips France v Premier ministre and Ministre des Affaires sociales et de la Santé

(Case C-329/16)

(2016/C 296/30)

Language of the case: French

Referring court

Conseil d’État

Parties to the main proceedings

Applicants: Syndicat national de l’industrie des technologies médicales (SNITEM) and Philips France

Defendants: Premier ministre and Ministre des Affaires sociales et de la Santé

Question referred

Must [Council] Directive 93/42/EEC of 14 June 1993 [concerning medical devices (OJ 1993 L 169, p. 1)] be interpreted as meaning that software, the purpose of which is to offer to prescribers practising in towns, a health establishment or a medico-social establishment support for determining a drug prescription, in order to improve the safety of prescription, facilitate the work of the prescriber, encourage conformity of the prescription with national regulatory requirements and reduce the cost of treatment at the same quality, constitutes a medical device within the meaning of that directive, where that software has at least one function that permits the use of data specific to a patient to help his doctor issue his prescription, in particular by detecting contraindications, drug interactions and excessive doses, even though it does not itself act in or on the human body?
EN Official Journal of the European Union C 279/18

Request for a preliminary ruling from the Juzgado de lo Social No 1 de Cuenca (Spain) lodged on 13 May 2016 — Carlos Enrique Ruiz Conejero v Ferroser Servicios Auxiliares, S.A. and Ministerio Fiscal

(Case C-270/16)

(2016/C 279/24)

Language of the case: Spanish

Referring court

Juzgado de lo Social No 1 de Cuenca

Parties to the main proceedings

Applicant: Carlos Enrique Ruiz Conejero

Defendants: Ferroser Servicios Auxiliares, S.A. and Ministerio Fiscal

Question referred

Does Directive 2000/78 (1) preclude the application of a provision of national law under which an employer is entitled to dismiss an employee on objective grounds for absences from work, albeit justified but intermittent, which amount to 20 % of the employee’s working hours in two consecutive months, provided that the total absences in the previous 12 months amount to 5 % of working hours or 25 % of working hours in four non-consecutive months within a 12-month period, in the case of an employee who must be treated as disabled within the meaning of the directive when his absence from work was caused by his disability?

(1) Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, p. 16).
EN Official Journal of the European Union C 314/11

Request for a preliminary ruling from the Curtea de Apel Cluj (Romania) lodged on 25 May 2016 — Teodor Ispas, Anduța Ispas v Direcția Generală a Finanțelor Publice Cluj

(Case C-298/16)

(2016/C 314/16)

Language of the case: Romanian

Referring court

Curtea de Apel Cluj

Parties to the main proceedings

Claimants: Teodor Ispas, Anduța Ispas

Defendant: Direcția Generală a Finanțelor Publice Cluj

Question referred

Is an administrative practice consisting in the taking of a decision imposing obligations on an individual without allowing that individual to have access to all of the information and documents considered by the public authority when it adopted that decision, being information and documents contained in the administrative file (not a public file) drawn up by the public authority, compatible with the principle of respect for the rights of the defence?
EN Official Journal of the European Union C 305/13

Request for a preliminary ruling from the Corte suprema di cassazione (Italy) lodged on 17 May 2016 — Preqù Italia s.r.l. v Agenzia delle Dogane e dei Monopoli

(Case C-276/16)

(2016/C 305/18)

Language of the case: Italian

Referring court

Corte suprema di cassazione

Parties to the main proceedings

Appellant: Preqù Italia s.r.l.

Respondent: Agenzia delle Dogane e dei Monopoli

Question referred

Is the Italian [tax] legislation [in question] contrary to the general principle of EU law that parties have a right to be heard in administrative procedures in that it does not provide, in favour of a taxpayer who has not been heard prior to the adoption of a tax measure by the customs authorities, for the suspension of that measure as the normal consequence of the lodging of an appeal?