ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 235/7

Appeal brought on 27 February 2014 by H against the order of the General Court (Seventh Chamber) delivered on 27 February 2014 in Case T-490/13 GJ v Court of Justice of the European Union

(Case C-221/14 P)

2014/C 235/10

Language of the case: French

Parties

Appellant: H (represented by: S. Sagias, Δικηγόρος)

Other party to the proceedings: Court of Justice of the European Union

Form of order sought

— set aside the order under appeal;

— refer the case back to the General Court for hearing on the merits or, in the alternative, uphold the claims put forward at first instance in their entirety;

— order the defendant at first instance, respondent in the current proceedings, to pay the costs of all proceedings.

Pleas in law and main arguments

The appellant puts forward three grounds of appeal in support of his appeal against the order of the general Court of 27 February 2014.

By his first ground of appeal, the appellant begins by arguing that the General Court misinterpreted Article 263 TFEU and Articles 90 and 91 of the Staff Regulations (1), as well as Articles 2 and 35 of the Rules on sickness insurance for officials of the European Communities. The appellant claims, first, that the order under appeal is vitiated by an error of law in that the General Court held that actions by former members of the Court against acts adversely affecting them in the area of JSIS coverage come solely within the scope of Article 263 TFEU and had to be brought within two months, as provided for under that provision. Secondly, the General Court erred in law in holding that Article 90(2) of the Staff Regulations of Officials is not applicable to members and former members of the Court.

By his second ground of appeal, the appellant then argues that the General Court erred in law in refusing to apply the case-law on excusable error.

Lastly, by his third plea, the appellant submits that the application of Article 111 of the General Court’s Rules of Procedure is vitiated by an error of law and a procedural irregularity. The appellant disagrees that the action brought before the General Court was ‘manifestly’ inadmissible, which prevented it from specifying the ground of inadmissibility which served as the basis for that ruling. The General Court also infringed the appellant’s right to a fair hearing, his rights of defence and, in particular, the right to be heard and the right to an effective remedy, contrary to Article 47 of the Charter of Fundamental Rights of the European Union.

(1) Council Regulation (EC, Euratom) No 723/2004 of 22 March 2004 amending the Staff Regulations of officials of the European Communities and the Conditions of Employment of other servants of the European Communities (OJ 2004 L 124, p. 1).
1)

Must Articles 2(1) and 10(2) of Council Directive 77/388/EEC of 17 May 1977 (1) be interpreted as meaning that a lump sum calculated as a percentage of the annual turnover received from routes operated as a franchise and paid onwards by an airline company which issued on behalf of another company tickets which are no longer valid constitutes non-taxable compensation paid to the latter, for the harm suffered as a result of the activation in vain by the latter of its means of transport or a sum corresponding to the proceeds from tickets issued and expired?
EN Official Journal of the European Union C 253/22

Appeal brought on 13 June 2014 by the Hellenic Republic against the judgment of the General Court (Seventh Chamber) delivered on 9 April 2014 in Case T-150/12 Greece v Commission

(Case C-296/14 P)

2014/C 253/29

Language of the case: Greek

Parties

Appellant: Hellenic Republic (represented by: Ι. Chalkias and Α. Vasilopoulou)

Other party to the proceedings: European Commission

Form of order sought

The appellant claims that the Court should:

— uphold the appeal, set aside in its entirety the judgment under appeal of the General Court of the European Union, for the reasons more specifically set out, uphold the action brought by the Hellenic Republic, annul the contested decision of the European Commission and order the Commission to pay the costs.

Grounds of appeal and main arguments

By the ground of appeal on which it relies, the Hellenic Republic maintains that EU law has been infringed because the General Court of the European Union misinterpreted and misapplied Article 107(1) and (3)(b) TFEU with regard to the conjunction of the exceptional conditions which characterised the Greek economy at the material time at issue.

More specifically, by the first part of the ground of appeal, it is submitted that by reason of a misinterpretation and misapplication of Article 107(1) TFEU the General Court of the European Union held that the measures at issue constituted a selective economic advantage for the beneficiaries which was sufficient to threaten to distort competition and trade between Member States given the exceptional conditions which characterised the Greek economy at the material time, while by the second part of the ground of appeal, it is submitted that the General Court of the European Union misinterpreted and misapplied Article 107(3)(b) TFEU because it restricted the regulatory scope of that provision to the terms of the Communication on the TCF [Temporary Community Framework for State aid measures] notwithstanding the conjunction of the exceptional conditions which characterised the Greek economy at the material time.
EN Official Journal of the European Union C 282/23

Request for a preliminary ruling from the Conseil d’État (France) lodged on 4 June 2014 — LFB Biomédicaments, Association des déficitaires en Alpha 1 Antitrypsine (Association ADAAT Alpha 1-France) v Ministre du travail, de l’emploi et de la santé, Ministre du budget, des comptes publics et de la réforme de l’État

(Case C-271/14)

2014/C 282/28

Language of the case: French

Referring court

Conseil d’État

Parties to the main proceedings

Applicants: LFB Biomédicaments, Association des déficitaires en Alpha 1 Antitrypsine (Association ADAAT Alpha 1-France)

Defendants: Ministre du travail, de l’emploi et de la santé, Ministre du budget, des comptes publics et de la réforme de l’État

Question referred

Does Article 6(5) of Council Directive 89/105/EEC of 21 December 1988 relating to the transparency of measures regulating the pricing of medicinal products for human use and their inclusion in the scope of national health insurance systems (1) require that a statement of reasons be given for a decision to remove a proprietary medicinal product from the list of medicinal products provided to inpatients in health establishments which may be covered by compulsory health insurance schemes in addition to services relating to hospital treatment covered in the context of fixed payments in respect of periods of hospitalisation and hospital care determined in accordance with diagnosis-related groups?

(1) OJ L 40, p. 8.
2.

Is applicable EU law, in particular Article 1(1)(a) of Council Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies, to be interpreted as making it mandatory that in carrying out the calculation provided for by that provision for the number of affected workers it is necessary to regard as workers persons who are not remunerated by the employer but are given financial support and are recognised by the competent public authority having responsibility for employment support, who actually perform work in order to acquire or improve skills or to complete vocational training (‘trainees’), or are Member States permitted to lay down national legislative provisions or practices as regards them?
2.

Given that local authorities assess land use taxes in the exercise of their public powers, without including VAT, does EU law preclude the assessment of VAT when the amounts relating to those taxes paid by a private undertaking providing infrastructures for the distribution of natural gas are passed on to an undertaking acquiring its services?
EN Official Journal of the European Union C 303/8

Request for a preliminary ruling from the Finanzgericht Baden-Württemberg (Germany) lodged on 16 May 2014 — Roman Bukovansky v Finanzamt Lörrach

(Case C-241/14)

2014/C 303/11

Language of the case: German

Referring court

Finanzgericht Baden-Württemberg

Parties to the main proceedings

Applicant: Roman Bukovansky

Defendant: Finanzamt Lörrach

Question referred

Are the provisions of the Agreement of 21 June 1999 between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons (1) (BGBl. II 2001, 810 et seq.), which was adopted as a Law by the German Bundestag on 2 September 2001 (BGBl. II 2001, 810) and entered into force on 1 June 2002 (‘the Agreement on the Free Movement of Persons’), in particular the preamble thereto, Articles 1, 2 and 21 thereof and Articles 7 and 9 of Annex I thereto, to be interpreted as meaning that a worker who has moved from Germany to Switzerland, who is not a Swiss national and who, since moving to Switzerland, has been a ‘reverse frontier worker’ within the meaning of Article 15a(1) of the DBA-Schweiz 1971/2002 (Swiss-German Double Taxation Agreement) cannot be made subject to tax by Germany pursuant to Article 4(4), in conjunction with the fourth sentence of Article 15a(1), of the DBA-Schweiz 1971/2002?

(1) OJ 1999 L 114, p. 6.
1)

Does the amount of the fine imposed by Paragraph 5/A of Law XLVIII of 2007 implementing Regulation (EC) No 1889/2005 of the European Parliament and of the Council of 26 October 2005 on controls of cash entering or leaving the Community (1) (‘the national implementing law’) fulfil the requirement in Article 9(1) of that Regulation, according to which the penalties laid down by national law must be effective, dissuasive and, at the same time proportionate to the infringement and to the objective pursued?…
Second ground of appeal: The General Court infringed the obligation to state the reasons on which a judgment is based under Articles 36 and 53(1) of the Statute of the Court. First, its statement of reasons relating to Table 1 submitted by the Federal Republic of Germany is inconsistent in so far as it refers on the one hand to alleged errors in calculation and on the other hand to an alleged error in measurement. Secondly, the statement of reasons is insufficient since the Court accepts that the comparison of migration limit values submitted by the Federal Republic of Germany fail to demonstrate a high level of protection, without examining the significance of the category of materials capable of being removed by scraping.
3)

‘Where a court in a member state is called upon to decide whether a legislative measure which constitutes a quantitative restriction on trade incompatible with article 34 TFEU may yet be justified under article 36 TFEU, on the grounds of the protection of human health, is that national court confined to examining only the information, evidence or other materials available to and considered by the legislator at the time at which the legislation was promulgated? And if not, what other restrictions might apply to the national court’s ability to consider all materials or evidence available and offered by the parties at the time of the decision of the national court?’
—

First plea: Toshiba submits that the General Court applied the wrong legal test when considering that the Japanese manufacturers of power transformers were potential competitors on the EEA market (1) on the ground that barriers to entry on the EEA market were not insurmountable and (2) on the basis of the existence of the Gentlemen’s Agreement, instead it should have verified if the Japanese producers had real concrete possibilities to enter the EEA market and that such an entry was an economically viable strategy. In the absence of potential competition between Japanese and European producers, the Gentlemen’s Agreement could not infringe Article 81 EC and the Commission lacked jurisdiction to pursue a case. The Contested Judgment and Contested Decision should therefore be annulled as regards Toshiba.
1)

Having regard to the principle of sincere cooperation, the principle of effectiveness with a view to achieving the objectives of directives and the principle that penalties must be proportionate, appropriate and reasonable, can Articles 15 and 16 of Directive 2008/115/EC (1) be interpreted as permitting criminal proceedings to be brought on the basis of national legislation that existed before harmonisation (Article 19(1)(f) and (i) of the [Aliens and Immigration Law (‘Chapter 105’)]) against an illegally staying third-country national upon whom unsuccessful coercive removal measures have been imposed and who has remained in detention for a period greater than 18 months, because he does not have a passport in his possession and does not cooperate with the authorities for the purpose of issue of such a passport through his embassy, pleading fear that he will be persecuted by the Iranian authorities?
EN Official Journal of the European Union C 351/4

Request for a preliminary ruling from the Tribunale civile di Trieste (Italy) lodged on 21 July 2014 — Florin Lazar, represented in the proceedings by Luigi Erculeo v Allianz SpA

(Case C-350/14)

2014/C 351/05

Language of the case: Italian

Referring court

Tribunale civile di Trieste

Parties to the main proceedings

Applicant: Florin Lazar, represented in the proceedings by Luigi Erculeo

Defendant: Allianz SpA

Questions referred

How is Article 4(1) of Regulation (EC) No 864/2007 (1) on the law applicable to non-contractual obligations (‘Rome II’) to be interpreted in so far as it provides that ‘the law applicable to a non-contractual obligation arising out of a tort/delict shall be the law of the country in which the damage occurs’? In particular:

1. How is the term ‘the [place] in which the damage occurs’ within the meaning of Article 4(1) of Regulation No 864/2007 to be interpreted in the context of a claim for compensation for material and non-material damage brought by the family members of a person who has died as a result of a road traffic accident which occurred in the State of the court seised, where those family members are resident in another EU Member State and have suffered the damage itself in that other Member State?

2. For the purposes of the application of Article 4(1) of Regulation No 864/2007, do the material and non material damage suffered, in their State of residence, by the close relatives of a person who has died as a result of a road traffic accident which occurred in the State of the court seised constitute ‘damage’ within the meaning of the first part of Article 4(1) of that regulation, or ‘indirect consequences’ within the meaning of the second part of that provision?

(1) Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II) OJ 2007 L 199, p. 40.
EN Official Journal of the European Union C 421/18

Request for a preliminary ruling from the Tribunal du travail de Bruxelles (Belgium) lodged on 28 August 2014 — Aliny Wojciechowski v Office national des pensions (ONP)

(Case C-408/14)

2014/C 421/27

Language of the case: French

Referring court

Tribunal du travail de Bruxelles

Parties to the main proceedings

Applicant: Aliny Wojciechowski

Defendant: Office national des pensions (ONP)

Question referred

On a proper construction of the principle of sincere cooperation and Article 4(3) TEU, on the one hand, and of Article 34(1) of the Charter of Fundamental Rights, on the other, is a Member State precluded from reducing or refusing a retirement pension payable to an employed person by virtue of the service performed, in accordance with the legislation of that Member State, where the total number of years worked in that Member State and within the European institutions exceeds the ‘occupational record unit’ of 45 years referred to in Article 10(a) of Royal Decree No 50 of 24 October 1967 on the retirement and survival pension of employed persons?
6.

Incorrect interpretation of the terms of the contracts at issue, incorrect application of Greek law and failure to take account of a material submission — Under Article ΙΙ 19.1 of the FP6 contracts, Article II.16 of the e-Ten contracts and Article ΙΙ 20.1 of the CIP contracts, the checks are to cover only the expenditure and receipts which relate to performance of the projects at issue, and not other entries. — Breach of the principle, laid down by case-law, that in Greek accounting and tax law financial years are independent. — Failure to take account, and absence of judicial appraisal, of the applicant’s material submission in paragraphs 61 to 64 of the application.
EN Official Journal of the European Union C 448/8

Request for a preliminary ruling from the Bayerischer Verwaltungsgerichtshof (Germany) lodged on 26 September 2014 — Davitas GmbH v Stadt Aschaffenburg

(Case C-448/14)

(2014/C 448/10)

Language of the case: German

Referring court

Bayerischer Verwaltungsgerichtshof

Parties to the main proceedings

Appellant: Davitas GmbH

Respondent: Stadt Aschaffenburg

Intervener: Landesanwaltschaft Bayern

Questions referred

Is the product ‘De Tox Forte’ which is marketed by the appellant a food or a food ingredient with a new molecular structure within the meaning of Article 1(2)(c) of Regulation (EC) No 258/97 (1)?

In particular, does it suffice, in order to be able to answer this question in the affirmative, that that product, which contains the substance clinoptilolite in its particular primary molecular structure, was not yet being used as a food prior to 15 May 1997, or does that product, in addition, have to be produced via the production process by means of a procedure which results in a new or intentionally modified molecular structure, which means that it must be a substance which did not previously exist naturally in that form?

(1) Regulation (EC) No 258/97 of the European Parliament and of the Council of 27 January 1997 concerning novel foods and novel food ingredients (OJ 1997 L 43, p. 1).
Does EU law, and in particular the provisions of Article 78(a) of Directive 2006/112/EC (1), preclude ... the land use tax paid by the gas distributor from being passed on to the final consumer, without interest or other charges and regardless of the price that the consumer pays for the gas consumed, that is, without being incorporated in that price?

If the answer to that question is negative, the following question is referred for a preliminary ruling:
EN Official Journal of the European Union C 462/11

Appeal brought on 21 February 2014 by Przedsiębiorstwo Handlowe Medox Lepiarz Jarosław Lepiarz Alicja sp. j. against the judgment of the General Court of 11 December 2013 in Case T-591/11 Przedsiębiorstwo Handlowe Medox Lepiarz Jarosław Lepiarz v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Henkel

(Case C-91/14 P)

(2014/C 462/17)

Language of the case: Polish

Parties

Appellant: Przedsiębiorstwo Handlowe Medox Lepiarz Jarosław Lepiarz Alicja sp. j. (represented by: M. Konieczyński and I. Kubiec, adwokaci)

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

By order of 2 October 2014, the Court of Justice (Sixth Chamber) dismissed the appeal in its entirety, in part as being inadmissible, and ordered Przedsiębiorstwo Handlowe Medox Lepiarz Jarosław Lepiarz Alicja sp. j. to bear the costs of the proceedings.
3)

Are Article 49 et seq. TFEU and Article 56 et seq. TFEU, considered also in the light of the principles set out in the judgment of the Court of Justice of the European Union of 16 February 2012 [in Joined Cases C 72/10 and C 77/10], to be interpreted as precluding the imposition of an obligation to transfer, free of charge, the use of tangible and intangible assets represented by the betting management and collection network in the event that the activity has ceased owing to the expiry of the licence or as a result of measures disqualifying the licence-holder or withdrawing the licence?
2)

If the first question is answered in the affirmative, is the scheme compatible with Article 5(2)(b) of Directive 2001/29 where the total amount allocated by the General State Budget to fair compensation for private copying, although it is calculated on the basis of the harm actually caused, has to be set within the budgetary limits established for each financial year?
EN Official Journal of the European Union C 26/10

Request for a preliminary ruling from the Curtea de Apel Oradea (Romania) lodged on 4 November 2014 — SC Max Boegl România SRL and Others v RA Aeroportul Oradea and Others

(Case C-488/14)

(2015/C 026/12)

Language of the case: Romanian

Referring court

Curtea de Apel Oradea

Parties to the main proceedings

Applicants: SC Max Boegl România SRL, SC UTI Grup SA, Astaldi SpA, SC Construcții Napoca SA

Defendants: RA Aeroportul Oradea, SC Porr Construct SRL, Teerag-Asdag Aktiengesellschaft, SC Col-Air Trading SRL, AZVI SA, Trameco SA, Iamsat Muntenia SA

Question referred

Must Article 1(1), (2) and (3) of Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts (1) and Article 1(1), (2) and (3) of Council Directive 92/13/EEC of 25 February 1992 coordinating the laws, regulations and administrative provisions relating to the application of Community rules on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors (2) , as amended by Directive 2007/66/EC (3) of the European Parliament and of the Council of 11 December 2007 amending Council Directives 89/665/EEC and 92/13/EEC with regard to improving the effectiveness of review procedures concerning the award of public contracts be interpreted as precluding legislation which makes access to review procedures of decisions of contracting authorities subject to an obligation to deposit beforehand a ‘good conduct guarantee’ such as that governed by Articles 271a and 271b of Government Emergency Ordinance No 34/2006?

(1) OJ 1989 L 395, p. 33.

(2) OJ 1992 L 76, p. 14.

(3) Directive 2007/66/EC of the European Parliament and of the Council of 11 December 2007 amending Council Directives 89/665/EEC and 92/13/EEC with regard to improving the effectiveness of review procedures concerning the award of public contracts (OJ 2007 L 335, p. 31).
1.

Does EU law, and in particular Article 45 of Directive 2004/18/EC, (1) preclude a provision — such as Article 1(17) of Law No 190/2012 — under which contracting authorities may treat as a legitimate ground for excluding undertakings from a tendering procedure for the award of a public procurement contract the non-acceptance, or the lack of documentary evidence of acceptance, by those undertakings of the commitments set out in legality protocols and, more generally, in agreements between the contracting authorities and participating undertakings which are intended to prevent organised crime from infiltrating the public contract awards sector?