ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 102/11

Reference for a preliminary ruling from the Juzgado de lo Mercantil 4, Barcelona (Spain) lodged on 13 February 2009 — Axel Walz v Clickair SA

(Case C-63/09)

2009/C 102/16

Language of the case: Spanish

Referring court

Juzgado de lo Mercantil 4, Barcelona

Parties to the main proceedings

Applicant: Axel Walz

Defendant: Clickair SA

Question referred

Does the limit of liability referred to in Article 22.2 of the Convention for the Unification of Certain Rules for International Carriage, signed in Montreal on 28 May 1999, include both non-material damage and material damage resulting from the loss of baggage?
3)

If the provision of the voucher is neither a supply of services for consideration within the meaning of Article 2(1) nor is to be treated as a supply of services under Article 6(2)(b), is Article 17(2) [now Article 168] to be interpreted so as to permit the employer to recover the value added tax it has incurred in purchasing and providing the voucher to the employee in accordance with the contract of employment in circumstances where the voucher is to be used by the employee for his or her private purposes?
1.

By the first plea in law, Hotel Cipriani alleges infringement and misapplication of Article 87(1) EC, together with the statement of inadequate/contradictory grounds for the judgment under appeal. The laws and regulations found to be incompatible with Article 87 EC in no way distort or threaten to distort competition on the common market in hotel and catering (the very market on which Hotel Cipriani operates), the reasons being that (i) the city of Venice is such a special context that it does not affect the common market in any way, and (ii) the social security relief at issue was granted merely in order to offset the additional costs borne by the undertakings concerned on account of the difficulties inherent in operating on the relevant geographical market in accordance with the same conditions as the other areas of the European common market. The Court of First Instance failed to take proper account of those special circumstances, and simply concluded — without considering this issue in sufficient depth — that the advantages derived by the Venetian undertakings outweighed the disadvantages relating to their location: hence the claim that the grounds for the judgment under appeal are either inadequate or contradictory.
3.

Must the second indent of Article 18(2) of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ 1995 L 281, p. 31) be interpreted as meaning that publication in accordance with Commission Regulation (EC) No 259/2008 of 18 March 2008 laying down detailed rules for the application of Council Regulation (EC) No 1290/2005 as regards the publication of information on the beneficiaries of funds deriving from the European Agricultural Guarantee Fund (EAGF) and the European Agricultural Fund for Rural Development (EAFRD) may be effected only following implementation of the procedure — in lieu of notification to a supervisory authority — established by that article?
1.

Does the sale of contact lenses constitute medical advice requiring the physical examination of a patient and thus not fall with the scope of Directive 2000/31/EC (1) of the European Parliament and of the Council on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market?
2.

Having regard to the fact that the Sixth VAT Directive contemplates the leasing of assets by exempt or partly exempt traders, and having regard to the Court's reference to ‘normal commercial operations’ in paragraphs 69 and 80 of the Judgement in Halifax and 27 of Case C-162/07 Ampliscientifica and also to the absence of any such reference in the Judgement in Case C-425/06 Part Service, is it an abusive practice for an exempt, or partly exempt, trader to do so even though in the context of its normal commercial operations it does not engage in leasing transactions?
EN Official Journal of the European Union C 153/28

Action brought on 4 May 2009 — Commission of the European Communities v Portuguese Republic

(Case C-154/09)

2009/C 153/52

Language of the case: Portuguese

Parties

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

Defendant: Portuguese Republic

Forms of order sought

— Declare that, by failing to transpose correctly into national law the rules of Community law governing the designation of the universal service provider or providers, and, in any event, by failing to ensure in practice that those rules are applied, the Portuguese Republic has failed to fulfil its obligations under Articles 3(2) and 8(2) of Directive 2002/22/EC. (1)

— Order the Portuguese Republic to pay the costs.

Pleas in law and main arguments

Article 121 of the Portuguese Law on Electronic Communications (Law No 5/2004 of 10 February) retains the public service, the exclusive public service concession and the corresponding rights and obligations until 2025, with PT Comunicações SA holding the concession for the public telecommunications service.

The Commission submits that, in terms of designating the companies responsible for providing the universal service, the Portuguese Law on Electronic Communications is confused, incoherent and inconsistent.

Consequently, the Portuguese State has failed to designate, by means of an efficient, objective, transparent and non-discriminatory procedure, the company or companies responsible for providing the universal service, as laid down by Article 8(2) in conjunction with Article 3(2) of Directive 2002/22.

(1) Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive) (OJ 2002 L 108, p. 51).
EN Official Journal of the European Union C 141/22

Reference for a preliminary ruling from the Tribunal Superior de Justicia de Galicia (Spain) lodged on 19 March 2009 — Pedro Manuel Roca Álvarez v Sesa Start España ETT SA

(Case C-104/09)

2009/C 141/40

Language of the case: Spanish

Referring court

Tribunal Superior de Justicia de Galicia

Parties to the main proceedings

Applicant: Pedro Manuel Roca Álvarez

Defendant: Sesa Start España ETT SA

Question referred

Does a national law (specifically, Article 37.4 of the Workers’ Statute) which recognises only employed mothers, but not employed fathers, as holders of the right to paid leave in respect of the feeding of an unweaned child, — leave which consists of a half-hour reduction in the working day or an hour taken off from work that may be divided into two parts, which is voluntary, paid for by the employer and may be taken until the child is nine months old —, infringe the principle of equal treatment, which prohibits discrimination on grounds of sex, and is recognised in Article 13 of the Treaty, in Council Directive 76/207/EEC (1) of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions, and in Directive 2002/73 (2) amending that Directive?

(1) OJ 1976 L 39, p. 40.

(2) OJ 2002 L 269, p. 15.
—

declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2005/32/EC (1) of the European Parliament and of the Council of 6 July 2005 establishing a framework for the setting of ecodesign requirements for energy-using products and amending Council Directive 92/42/EEC and Directives 96/57/EC and 2000/55/EC of the European Parliament and of the Council, or in any event by not informing the Commission thereof, the Hellenic Republic has failed to fulfil its obligations under that directive;
EN Official Journal of the European Union C 180/33

Action brought on 28 May 2009 — Commission of the European Communities v Republic of Cyprus

(Case C-190/09)

2009/C 180/57

Language of the case: Greek

Parties

Applicant: Commission of the European Communities (represented by: I. Khatzigiannis, A. Margelis, acting as Agents)

Defendant: Republic of Cyprus

Form of order sought

The Court is asked to:

— declare that, by prohibiting the distribution and sale of biofuels produced from genetically modified plants and by enacting section 6 of Law 66(I) of 2005 without previous notification to the European Commission, the Republic of Cyprus is in breach of its obligations under Article 28 EC and Article 8(1) of Directive 98/34/EC (1);

— order the Republic of Cyprus to pay the costs.

Pleas in law and main arguments

Cypriot Law No 66(I) of the promotion of the use of biofuels or other renewable fuels for transport transposes into Cypriot law Directive 2003/30/EC on the promotion of the use of biofuels or other reusable fuels for transport. However, section 6 of that Cypriot law contains a clause pursuant to which the distribution and sale of biofuels produced from genetically modified plants is prohibited.

The cultivation of approved varieties of genetically modified (GM) plants in the European Union is lawful on the basis of Directive 2001/18/EC and Regulation (EC) No 1829/2003. Nevertheless, processed fuels produced from genetically modified plants do not fall within the scope of application of that legislation and consequently the compatibility of the clause with Articles 28 to 30 of the EC Treaty falls to be examined.

As regards infringement of Articles 28 to 30 of the EC Treaty, the Commission considers, first, that the Cypriot prohibition is not necessary to protect any kind of public interest and, second, that the national rules which prohibit a product absolutely are contrary to the principle of proportionality.

As regards infringement of Directive 98/34/EC, the Commission considers that section 6 of Law No 66(I) 2005 constitutes a technical regulation within the meaning of Article 1 thereof, and does not fall within the exemption of Article 10(1), first indent. Consequently, the Cypriot authorities were required to inform the Commission of the above provision. Since the Cypriot authorities enacted the provision without prior notification, they were in breach of their obligation under Article 8(1) of Directive 98/34/EC.

(1) OJ L 204 of 21.7.1998, p. 37.
If the first question should be answered in the affirmative:

Can hardship under Article 40(5) of Regulation (EC) No 1782/2003 be recognised in relation to an area-based amount only where there has been a change of use of the area from arable land to pastureland on the basis of (and precisely because of) participation in an agri-environmental measure as referred to in the aforementioned provision?
2.

If the first question should be answered in the affirmative: Do the sanctions under Article 51 of Regulation (EC) No 796/2004 (1) also apply to a farmer who before 29 December 2006 (in the absence of areas eligible for set-aside) infringes the obligation first to activate completely payment entitlements based on set-aside?
EN Official Journal of the European Union C 205/20

Action brought on 9 June 2009 — Commission of the European Communities v Slovak Republic

(Case C-207/09)

2009/C 205/35

Language of the case: Slovak

Parties

Applicant: Commission of the European Communities (represented by: K. Simonsson and A. Tokár, Agents, acting as Agents)

Defendant: Slovak Republic

Form of order sought

— Declare that, by using the services of organisations which are not recognised within the meaning of Articles 2 and 4 of Directive 94/57/EC (1) for the purposes of undertaking inspections and surveys provided for in Article 3 of the Directive, the Slovak Republic failed to fulfil its obligations arising under that article;

— order Slovak Republic to pay the costs.

Pleas in law and main arguments

The Slovak Republic used the services of organisations which are not recognised as classification societies within the meaning of Directive 94/57/EC and, according to the Commission’s information, failed to terminate the authorisation given to such organisations. Moreover, since the Slovak Republic has failed to create an appropriate legislative framework to prevent any future authorisation of organisations which are not recognised as classification societies, there is a danger that similar cases of incorrect application of Directive 94/57/EC, such as that forming the subject matter of this action, will be repeated.

(1) Council Directive 94/57/EC of 22 November 1994 on common rules and standards for ship inspection and survey organisations and for the relevant activities of maritime administrations (OJ 1994 L 319, p. 20).
EN Official Journal of the European Union C 193/12

Reference for a preliminary ruling from the Verwaltungsgerichtshof (Austria) lodged on 10 June 2009 — Ilonka Sayn-Wittgenstein

(Case C-208/09)

2009/C 193/15

Language of the case: German

Referring court

Verwaltungsgerichtshof

Parties to the main proceedings

Applicant: Ilonka Sayn-Wittgenstein

Defendant: Landeshauptmann von Wien

Question referred

Does Article 18 EC preclude legislation pursuant to which the competent authorities of a Member State refuse to recognise that part of the surname of a (grown up) adopted child, determined in another Member State, which contains a title which is inadmissible in the former Member State, including under constitutional law?
EN Official Journal of the European Union C 205/28

Reference for a preliminary ruling from the Cour d’appel, Brussels lodged on 3 July 2009 — Fluxys SA v Commission de régulation de l’électricité et du gaz (CREG)

(Case C-241/09)

2009/C 205/48

Language of the case: French

Referring court

Cour d’appel, Brussels

Parties to the main proceedings

Applicant: Fluxys SA

Defendant: Commission de régulation de l’électricité et du gaz (CREG)

Questions referred

Do Articles 1, 2 and 18 of Directive 2003/55/EC (1) and Article 3 of Regulation No 1775/2005/EC (2) preclude national legislation establishing a separate tariff regime for the transit activity, which derogates from the rules governing transportation, by creating a distinction, within the transportation activity, between ‘transmission’ and ‘transit’?

(1) Directive 2003/55/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in natural gas and repealing Directive 98/30/EC (OJ 2003 L 176, p. 57).

(2) Regulation (EC) No 1775/2005 of the European Parliament and of the Council of 28 September 2005 on conditions for access to the natural gas transmission networks (OJ 2005 L 289, p. 1).
2.

Is there detriment within the meaning of Article 22(1)(b) of Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time if, as a result of having requested that the maximum working time in future be complied with, an employee in the on-call service is transferred, against his will, to a different post that largely involves office duties?
3.

Does national law establish the reaching of the specified age as the sole condition for the termination of the employment relationship of indefinite duration and for the possibility that the relationship can be continued as a fixed-term employment relationship between the same worker and employer for the same post? Does national law establish a maximum duration and a maximum number of extensions of the fixed-term employment relationship with the same employer after the contract of indefinite duration has been converted into a fixed-term contract, beyond which a continuation of the employment relationship between the parties is not possible?
EN Official Journal of the European Union C 244/2

Reference for a preliminary ruling from the Landesarbeitsgericht Hamburg (Germany) lodged on 6 July 2009 — Susanne Bulicke v Deutsche Büro Service GmbH

(Case C-246/09)

2009/C 244/02

Language of the case: German

Referring court

Landesarbeitsgericht Hamburg

Parties to the main proceedings

Applicant: Susanne Bulicke

Defendant: Deutsche Büro Service GmbH

Question referred

Does national legislation under which a time-limit of two months from receipt of a rejection of a job application — or by way of interpretation: from knowledge of the discrimination — applies (in the absence of provisions in a collective agreement) to the bringing in writing of a claim for damages and/or compensation based on discrimination in recruitment infringe primary law of the European Community (safeguarding effective legal protection) and/or the Community law prohibition of age discrimination, Directive 2000/78/EC of 27 November 2000, (1) if three-year limitation periods apply to equivalent claims under national law, and/or the ‘prohibition of regression’ (reduction of protection) under Article 8 of Directive 2000/78/EC, if a previous national provision provided for a longer limitation period for discrimination on grounds of sex?

(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 233/12

Appeal brought on 12 August 2009 by NDSHT Nya Destination Stockholm Hotell & Teaterpaket AB against the judgment of the Court of First Instance (First Chamber) delivered on 9 June 2009 in Case T-152/06: NDSHT Nya Destination Stockholm Hotell & Teaterpaket AB v Commission of the European Communities

(Case C-322/09 P)

2009/C 233/21

Language of the case: English

Parties

Appellant: NDSHT Nya Destination Stockholm Hotell & Teaterpaket AB (represented by: M. Merola and L. Armati, avvocati)

Other party to the proceedings: Commission of the European Communities

Form of order sought

The appellant claims that the Court should:

— set aside the judgment under appeal in its entirety;

— declare the action of Destination Stockholm in case T-152/06 admissible and grounded, and therefore grant the forms of order sought at first instance;

— order the Commission to bear costs.

In the alternative:

— set aside the judgment under appeal in its entirety and declare the action of Destination Stockholm in case T-152/06 admissible;

— refer the case back to the Court of First Instance for the examination of the merits of the case;

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

Pleas in law and main arguments

The appellant submits that, in judgment under appeal, the Court of First Instance:

— misapplied Article 230 EC by manifestly distorting of the content of the contested letters, the intention of their author and the evidence adduced before the CFI;

— incorrectly classified the Commission's position on the compatibility of the contested measures as preliminary and used a contradictory reasoning on the same issue;

— inappropriately made reference to Article 88(1) EC by considering that the Commission rejected a request to recommend appropriate measures;

— incorrectly applied Articles 4, 10, 13 and 20(2) of the Regulation No 659/1999 (1), in particular by ruling that the classification by the Commission of the contested measures as existing aid prevents the rejection of a complaint from being challenged.

(1) Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty OJ L 83, p. 1.
EN Official Journal of the European Union C 256/12

Action brought on 4 August 2009 — Commission of the European Communities v Republic of Poland

(Case C-311/09)

2009/C 256/23

Language of the case: Polish

Parties

Applicant: Commission of the European Communities (represented by: D. Triantafyllou and K. Herrmann, acting as Agents)

Defendant: Republic of Poland

Form of order sought

— declare that, by charging VAT for the supply of international road transport services by taxable persons having their seat or permanent place of residence outside Poland in the manner set out in Chapter 13, Paragraph 35(1), (3), (4) and (5), of the Regulation of the Minister for Finance of 27 April 2004, the Republic of Poland has failed to fulfil its obligations under Articles 73, 168 and 273 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax; (1)

— order the Republic of Poland to pay the costs.

Pleas in law and main arguments

International road transport services are liable to value added tax under the principles defined in Directive 2006/112.

In the Commission’s submission, to charge and calculate VAT on international road transport services supplied by taxable persons having their seat or permanent place of residence outside Poland in the manner set out in Chapter 13, Paragraph 35(1), (3), (4) and (5), of the Regulation of the Minister for Finance of 27 April 2004 is incompatible with Articles 73, 168 and 273 of Directive 2006/112. The incompatibility with Article 73 of Directive 2006/112 consists in the fact that in every case the taxable amount is PLN 285, taking account neither of the actual distance covered in Poland by bus nor of the actual payment due for a particular service supplied. The Polish system for collection of VAT does not allow a taxable person supplying international passenger transport services to deduct the VAT on goods acquired during a given tax period for the purposes of the taxed passenger service supplied (for example on fuel), which is contrary to Article 168 of Directive 2006/112. Furthermore, the Polish system for collection of the VAT is incompatible with Article 273 of the directive because it establishes an obligation for taxable persons to submit a return showing the amount of tax to the customs office at the time when the bus carrying passengers enters Poland and to pay that tax at the customs office ‘as of the moment when the bus carrying passengers enters national territory’, which gives rise to formalities connected with the crossing of frontiers.

In the Commission’s submission, the contested system for collecting and calculating VAT cannot be based on Article 281 or Article 395 of Directive 2006/112.

(1) OJ 2006 L 347, p. 1.
—

Declare that, by allowing flagrant, repeated and serious infringements of the rules laid down in Article 18(2) of Council Directive of 3 October 1989 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities (89/552/EEC (1)), the Kingdom of Spain has failed to fulfil its obligations under Article 3(2) of that directive, read in conjunction with Article 10 of the EC Treaty;
1.

Must Articles 49 EC and 50 EC be interpreted as precluding a national arrangement, as set out in Article 2 of the Netherlands Law on the Employment of Foreign Nationals (Wet arbeid vreemdelingen), read in conjunction with Article 1e(1)(c) of the Decree implementing the Law on the Employment of Foreign Nationals (Besluit uitvoering Wet arbeid vreemdelingen), under which a work permit is required for the hiring-out of workers as referred to in Article 1(3)(c) of Directive 96/71/EC? (1)
1.

Must Article 28cA(a) of the Sixth Council Directive 77/388/EEC (1) be interpreted as meaning that a supply of goods within the meaning of that provision is to be refused exemption from value added tax if the supply has actually been effected, but it is established on the basis of objective factors that the vendor, a taxable person, (a) knew that, by his supply, he was participating in a transaction aimed at evading VAT, or (b) took actions aimed at concealing the true identity of the person to whom the goods were supplied in order to enable the latter person or a third person to evade VAT?