ddrg/super_eurlex huggingface dataset:
2.

Do the provisions of Article 146(1)(a) and (b) and Article 131 of Directive 2006/112/EC and the principles of taxation of consumption, neutrality and proportionality preclude a national practice whereby it is assumed that no supply of goods has taken place in the case where the goods have been indubitably exported outside the territory of the European Union, and following their exportation the tax authorities establish in the course of their investigation that the person actually acquiring the goods was not the entity to whom the taxable person issued the invoice documenting the supply, but was another entity unidentified by the authorities, as a result of which the authorities refuse to exempt such a transaction from tax with the right to deduct (which in Poland means application of a 0 % rate)?
2.

In the event that the first question is answered in the affirmative, must Article 7(2) 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 be interpreted as precluding national legislation and/or case-law, according to which in the event that the employment relationship is terminated once again the worker in question is not entitled to financial compensation for unused paid annual leave for the period from the date of his previous dismissal until the date of his reinstatement
Request for a preliminary ruling from the Sąd Okręgowy w Warszawie (Poland) lodged on 5 September 2018 — Criminal proceedings against VX, WW and XV

(Case C-563/18)

(2019/C 44/12)

Language of the case: Polish

Referring court

Sąd Okręgowy w Warszawie

Parties to the main proceedings

VX, WW and XV

Question referred

On a proper construction of the second subparagraph of Article 19(1) of the Treaty on European Union, does the resulting obligation for Member States to provide remedies sufficient to ensure effective legal protection in the fields covered by EU law preclude provisions which remove the guarantee of independent disciplinary proceedings against judges in Poland by permitting disciplinary proceedings to be conducted under political influence, giving rise to a risk that the system of disciplinary measures will be used to politically control the content of judicial decisions?
Appeal brought on 23 November 2018 by Bank for Development and Foreign Economic Affairs (Vnesheconombank) against the judgment of the General Court (Sixth Chamber) delivered on 13 September 2018 in Case T-737/14 Vnesheconombank (VEB) v Council

(Case C-731/18 P)

(2019/C 65/33)

Language of the case: Spanish

Parties

Appellant: Bank for Development and Foreign Economic Affairs (represented by: J. Viñals Camallonga and J. Iriarte Ángel, lawyers)

Other parties to the proceedings: Council of the European Union, European Commission

Form of order sought

The applicant claims that the Court should:

— set aside the judgment of the General Court (Sixth Chamber) of 13 September 2018 in Case T-737/14;

— give final judgment in the proceedings by granting the forms of order sought by the applicant, now the appellant, at first instance; that is to say, annul Article 1 of Decision 2014/512/CFSP (1) of 31 July 2014, Article 5 of Regulation (EU) No 833/2014 (2) of 31 July 2014, the new Article 1 in accordance with Decision 2014/659/CFSP (3) of 8 September 2014 and the new Article 5 in accordance with Regulation (EU) No 960/2014 (4) of 8 September 2014, in so far as they concern VEB and remove its name from the annexes in which it is included;

— Order the Council to pay the costs of both actions.

Grounds of appeal and main arguments

The appellant relies on four grounds in support of its appeal:

1. Error in law in that the General Court erroneously ruled that the Council had met its duty to state reasons.

2. Error in law in that the General Court erroneously ruled that there was no manifest error in the assessment of the facts on which the relevant provisions of the contested measures are based; this also amounts to a misuse of powers.

3. Error in law in that the General Court erroneously ruled that the right to an effective remedy had been respected.

4. Error in law in that that the General Court erroneously ruled that VEB’s right to property had been respected; this also amounts to an infringement of the principle of equality.

(1) Council Decision 2014/512/CFSP of 31 July 2014 concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine (OJ 2014 L 229, p. 13)

(2) Council Regulation (EU) No 833/2014 of 31 July 2014 concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine (OJ 2014 L 229, p. 1)

(3) Council Decision 2014/659/CFSP of 8 September 2014 amending Decision 2014/512/CFSP concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine (OJ 2014 L 271, p. 54)

(4) Council Regulation (EU) No 960/2014 of 8 September 2014 amending Regulation (EU) No 833/2014 concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine (OJ 2014 L 271, p. 3)
Appeal brought on 17 December 2018 by Jean-François Jalkh against the judgment delivered on 17 October 2018 in Case T-26/17 Jalkh v Parliament

(Case C-792/18 P)

(2019/C 65/36)

Language of the case: French

Parties

Appellant: Jean-François Jalkh (represented by: F. Wagner, avocat)

Other party: European Parliament

Form of order sought

The appellant submits that the Court should:

— Set aside the judgment given on 17 October 2018 by the Seventh Chamber of the General Court of the European Union (T-26/17); Accordingly:

— Annul the decision of the European Parliament of 22 November 2016 adopting Report No A8-0319/2016 on the request for waiver of the immunity and privileges of Jean-François Jalkh, Member of the European Parliament;

— Make an appropriate order on the amount to be awarded to the appellant in respect of the costs of the proceedings;

— Order the European Parliament to pay the entirety of the costs.

Grounds of appeal and main arguments

The grounds of appeal allege a breach of EU law, error of law and error of characterisation of the legal nature of the facts, as well as manifest error of assessment.

1. The preliminary observations in the judgment

Contrary to the General Court’s assertion set out in paragraph 21 of the judgment under appeal, the absence of any waiver of parliamentary immunity does not deprive a party of the possibility of seeking, in France, compensation for the harm suffered solely at civil level, on the ground of fault (Article 1240 of the Civil Code) against a Member of Parliament.

2. The first plea in law analysed by the General Court

The General Court’s analysis is based on confusion between two provisions. Point H is part of the reasoning in reference to Article 8 of Protocol No 7, on expressing opinions, whereas the General Court sets out its reasons on that subject in paragraphs 44 to 46, in reference to Article 9 of Protocol No 7 on immunity, which refers to the relevant national provisions.

3. The second and third pleas in law examined by the General Court

It is on account of a manifest error of assessment that the General Court fails to give normative value to the European Parliament Directorate General for Research Working Paper on ‘Parliamentary Immunity in the Member States of the European Community and in the European Parliament, Legal Affairs Series, and fails to take into account the principles recalled therein, which leads to an erroneous assessment of Article 9 of Protocol No 7 in the light of the facts of the case.

4. The fourth plea in law examined by the General Court

— Existing legal practice Contrary to the General Court’s declaration, an established legal practice of the European Parliament ‘consisting in refusing requests for waiver of parliamentary immunity based on facts relating to the political activities of Members of Parliament’ did exist, which ought to have led the General Court to make a different finding on the waiver of parliamentary immunity.
1)

In the judgement under appeal the General Court erred in applying Article 76(1) of Regulation No 207/2009 (1) (now Article 95(1) of Regulation 2017/1001 (2)) and Article 65 of Regulation No 207/2009 (now Article 72 of Regulation 2017/1001), by declaring the Appellant’s arguments concerning the weak distinctive character of the earlier mark in the opposition proceedings inadmissible, as they have been put forward for the first time before the Court (paragraphs 87-90 of the judgement under appeal). a. The General Court must assess facts and arguments, even though they were presented for the first time before it, if the EUIPO Board of Appeal should have taken them into account of its own motion. b. Meaning of a part of a trade mark in an EU language is a well-known fact and as such it should be analysed by the Office of its own motion. As a result, arguments relating to it shall be thoroughly analysed by the General Court, also by assessing the arguments presented for the first time before it. c. The applicant in the proceedings before the General Court has a right to question assessment of well-known facts made by the EUIPO Board of Appeal, also by presenting new arguments before the General Court and evidence supporting these arguments d. By failing to assess facts and arguments the Office should have taken into account of its own motion (including well-known facts relating to the meaning of the trade marks being subject to the opposition proceedings) the General Court infringed the general rules of procedure and came to erroneous assessment of matters relevant in the case before the Board of Appeal.
2.

If the economic advantage must have a certain degree of substantiality, and a person, on the basis of the triviality of the economic advantage received by him and the non-fulfilment of other possible criteria of use in the course of trade, may not be regarded as having used a trade mark in the course of his own trade, is the condition of use in the course of trade within the meaning of Article 5(1) of the Trade Marks Directive satisfied if a private individual uses a trade mark on behalf of another person as part of that other person’s trade, where he is not, however, an employee in the service of that other person?
Official Journal of the European Union

Request for a preliminary ruling from the Landesverwaltungsgericht Steiermark (Austria) lodged on 6 July 2018 — Fluctus s.r.o. and Others

(Case C-444/18)

(2019/C 93/27)

Language of the case: German

Referring court

Landesverwaltungsgericht Steiermark

Parties to the main proceedings

Appellants: Fluctus s.r.o., Fluentum s.r.o., SD

Respondent authority: Landespolizeidirektion Steiermark

Other party: Finanzpolizei

By order of 9 January 2019 the Court of Justice (Seventh Chamber) held as follows:

The request for a preliminary ruling submitted by the Landesverwaltungsgericht Steiermark (Regional Administrative Court, Styria) (Austria) by decision of 2 July 2018 is manifestly inadmissible.
3(1):

Is a device that detects any parameter connected with the conduct of the approval procedures provided for in Regulation (EC) No 715/2007, for the purposes of activating or adjusting upwards, during those procedures, the operation of any part of the emission control system, and thus obtaining approval of the vehicle, a ‘defeat device’ within the meaning of Article 3.10 of Regulation (EC) No 715/2007?
4.

Do Articles 2, 3 and 6 TEU, Articles 14, 15(1) and 126 TFEU and the first paragraph of Article 151 TFEU, Article 31(1) of the Charter of Fundamental Rights of the European Union, and Articles 5, 6 and 10 of the European Pillar of Social Rights preclude a provision of national legislation, such as Article 1(489) of Law No 147/2013, which, under the conditions laid down therein, enables a person to work for an Italian public administrative authority while waiving, in full or in part, the corresponding remuneration, even if no provision is made for any change in the working arrangements in the light of such waiving, either in terms of working time or from the perspective of the quantity and quality of work required and the resulting responsibilities, and thus even if the partial waiving of remuneration entails a significant change to the mutual working agreement, both from the point of view of the correlation between the remuneration and the quality and quantity of work provided and because the worker is thereby ultimately compelled to carry out his activities under sub-optimal working conditions, which lay the foundations for a lower degree of commitment to the work and for a reduced level of efficiency on the part of the administrative authority?
2.

If the answer to the first question is in the affirmative, must Articles 49 and 54 TFEU be interpreted as precluding the same legislation of a Member State relating to a tax integration scheme, in particular to strict separation between vertical integration schemes (between a group parent company and its direct or indirect subsidiaries) and horizontal integration schemes (between two or more resident subsidiaries of a group parent company which remains outside the tax integration perimeter) stemming from that legislation, and the resulting obligation to end a pre-existing vertical tax integration arrangement before being able to form a horizontal tax integration group, where: — a vertical tax integration arrangement with an integrating group parent company at national level which is resident in the Member State concerned (which, at the same time, represents the intermediate subsidiary in relation to the ultimate parent company, resident in another Member State) and the resident subsidiaries of the group parent company, had previously been established, on account of the fact that the legislation of the Member State concerned allows only vertical tax integration for the purposes of admission to the scheme, notwithstanding the fact that the ultimate parent company is resident in another Member State; — sister companies of the integrating group parent company of the Member State concerned (therefore also subsidiaries of the ultimate parent company resident of another Member State) are denied access to the existing tax integration arrangements on the ground that the two integration schemes, vertical and horizontal, are incompatible; and — the inclusion of the results of those sister companies in the consolidated results of the companies within the group would entail the undoing of the pre-existing vertical tax integration arrangement — with the ensuing negative tax consequences on account of non-compliance with the minimum duration of the integration arrangement required by national law — and the setting up of a new horizontal tax integration arrangement, even though the resident integrating company (at the level at which the results of the fiscally integrated companies are consolidated) remains the same?
3.

Does EU law, in particular Article 9 of Directive 2000/78/EC, (1) preclude an arrangement which cancels a right to compensation for age-related discriminatory payment after two months if: — the time limit starts with the delivery of the judgment of 8 September 2011, Hennigs and Mai, C-297/10 and C-298/10, EU:C:2011:560 although the person concerned is not covered by the Bundesangestelltentarifvertrag (Federal Collective Agreement for contractual employees), but his personal situation is the same as in the judgment of 9 September 2015, Unland (C-20/13, EU:C:2015:561); — the aforementioned judgment can be obtained from the officials and judges concerned (employees) only from general public sources; — the employers have denied transferability to officials following the delivery of the abovementioned judgment, thereby denying the existence of age discrimination, whereby that legal opinion has also been communicated externally, at least partially; — the case-law of the administrative courts at first instance has, for the most part, denied the existence of age discrimination within the time limit referred to and also subsequently, until delivery of the judgment of 19 June 2014, Specht and Others, C-501/12 to C-506/12, C-540/12 and C-541/12, EU:C:2014:2005; — the case-law of the higher courts did not exist within the time limit and the first decision at highest instance was only taken following the delivery of the judgment in Specht and Others; — in the civil service or judicial relationship (employment relationship) exclusion periods apply only to the reimbursement of special costs and such periods are not shorter than six months; — Rights to salary (remuneration) are subject to a three-year limitation period, starting from the end of the year in which the right has become due and the beneficiary is aware of or ought to be aware of the right, or a limitation period of ten years runs; — national rights to salary (remuneration), which are not legally fixed in a timely manner, i.e. within the financial year for which it is sought, are to be asserted?
1.

Must a commercial agreement between a provider of internet access services and an end user under which the service provider charges the end user a zero-cost tariff for certain applications (that is to say, the traffic generated by a given application is not taken into account for the purposes of data usage and does not slow down once the contracted data volume has been used), and under which that provider engages in discrimination which is confined to the terms of the commercial agreement concluded with the end consumer and is directed only against the end user party to that agreement and not against any end user not a party to it, be interpreted in the light of Article 3(2) of Regulation (EU) 2015/2120 of the European Parliament and of the Council of 25 November 2015 (1) laying down measures concerning open internet access and amending Directive 2002/22/EC on universal service and users’ rights relating to electronic communications networks and services and Regulation (EU) No 531/2012 on roaming on public mobile communications networks within the Union (ʻthe Regulation’)?
Request for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 9 November 2018 — Ascopiave SpA and Others v Ministero dello Sviluppo Economico and Others

(Case C-711/18)

(2019/C 131/23)

Language of the case: Italian

Referring court

Consiglio di Stato

Parties to the main proceedings

Appellants: Ascopiave SpA, Bim Belluno Infrastrutture SpA, Centria Srl, Retipiù Srl, Pasubio Distribuizione Gas Srl — Unipersonale, Pasubio Group SpA, Unigas Distribuzione Srl

Respondents: Ministero dello Sviluppo Economico, Presidenza del Consiglio dei Ministri, Ministero per gli Affari Regionali e le Autonomie

Questions referred

Does EU law and, in particular, the common rules governing the internal market in electrical energy and natural gas and the principles of legal certainty and protection of legitimate expectations allow retroactive application of the criteria for determining the amount of the reimbursements payable to former concession holders, thereby affecting previous contractual relationships, or can such application be justified, also in the light of the principle of proportionality, by the need to protect other public interests of European importance, relating to the necessity of improving protection for competition within the market in question and of affording greater protection to service users, who might indirectly bear the burden of an increase in the sums payable to former concession holders?
Official Journal of the European Union

Appeal brought on 17 December 2018 by Pracsis SPRL, Conceptexpo Project against the order of the General Court (Second Chamber) delivered on 3 October 2018 in Case T-33/18, Pracsis and Conceptexpo Project v Commission and EACEA

(Case C-794/18 P)

(2019/C 182/04)

Language of the case: French

Parties

Appellants: Pracsis SPRL, Conceptexpo Project (represented by: J.-N. Louis, avocat)

Other parties to the proceedings: European Commission, Education, Audiovisual and Culture Executive Agency (EACEA)

By order of 11 April 2019, the Court (Seventh Chamber) dismissed the appeal as being, in part, manifestly inadmissible and, in part, manifestly unfounded.
1.

Should Article 2 TEU, in conjunction with the third sentence of Article 4(3), Articles 6(1) and 19(1) TEU, in conjunction with Article 47 of the Charter of Fundamental Rights and Article 9(1) of Council Directive 2000/78/EC and the third paragraph of Article 267 TFEU, be interpreted as meaning that an infringement of the rule of law and of the right to an effective remedy and to effective judicial protection occurs in a situation where the national legislature, in granting the right of appeal to a court in individual cases concerning service in the office of judge of the court of last instance of a Member State (the Supreme Court), stipulates that a decision made during the selection procedure preceding the submission of a motion for appointment to the position of judge of the aforementioned court is final and effective where not all parties to the selection procedure have appealed against the decision made with respect to the joint consideration and assessment of all candidates for Supreme Court judges, who also include a candidate not interested in appealing that decision, namely a candidate indicated in the motion for appointment to the aforementioned position, which as a result: — undermines the effectiveness of the remedy and the competent court’s ability to carry out a genuine review of the aforementioned selection procedure? — and, where the scope of that procedure also includes those positions of judges of the Supreme Court to whose holders the new lower retirement age has been applied without leaving the decision on whether to take advantage of the lower retirement age to the sole discretion of the judge concerned, in the context of the principle of the irremovability of judges — where it is found that this principle has been thereby undermined — also has an impact on the scope and outcome of the judicial review of the aforementioned selection procedure?
Request for a preliminary ruling from the Wojewódzki Sąd Administracyjny we Wrocławiu (Poland) lodged on 27 July 2018 — Mennica Wrocławska sp. z o.o. v Dyrektor Izby Administracji Skarbowej we Wrocławiu

(Case C-491/18)

(2020/C 19/07)

Language of the case: Polish

Referring court

Wojewódzki Sąd Administracyjny we Wrocławiu

Parties to the main proceedings

Appellant: Mennica Wrocławska sp. z o.o.

Respondent: Dyrektor Izby Administracji Skarbowej we Wrocławiu

By order of 13 December 2018, the Court (Tenth Chamber) ruled that Articles 168(a), 178(a) and 226 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, as amended by Council Directive 2010/45/EU of 13 July 2010, must be interpreted as precluding the national tax authorities from refusing to allow a taxable person the right to deduct the input value added tax due or paid for the sole reason that the invoices drawn up contain an error as to the identification of the goods which were the subject of the transactions in question, even though the taxable person had provided to the tax authorities, before those authorities took a decision in his regard, the documents and explanations necessary for determining what the actual subject matter of those transactions was and for establishing that those transactions had indeed taken place.
Official Journal of the European Union

Appeal brought on 27 December 2018 by Aldo Supermarkets against the judgment of the General Court (Eighth Chamber) delivered on 25 October 2018 in Case T-359/17: Aldo Supermarkets v EUIPO — Aldi Einkauf

(Case C-822/18 P)

(2019/C 255/24)

Language of the case: English

Parties

Appellant: Aldo Supermarkets (represented by: M. Thewes, avocat)

Other parties to the proceedings: European Union Intellectual Property Office, Aldi Einkauf GmbH & Co. OHG

By order of 4 June 2019 the Court of Justice (Sixth Chamber) held that the appeal was inadmissible.