ddrg/super_eurlex huggingface dataset:
3.

In the Second Ground of Appeal, the Appellants recall that in their observations on the pleas of inadmissibility, they had submitted that only a broad interpretation of Article 263, fourth paragraph, TFEU would be in conformity with Article 47 of the Charter Articles 6 and 13 ECHR. Given that this plea of law was decisive for the outcome of the case, the General Court was under a legal duty to provide for a specific and express reply. The Appellants demonstrate, however, that the General Court did not adequately address this plea of law. The omission of the General Court to do so constitutes an error in law which shall result in the annulment of the order under appeal (first part of the second ground of appeal). In the second part of the second ground of appeal, and in subsidiary order, the Appellants respectfully invite the Court of Justice to annul the order under appeal on the ground that the interpretation of Article 263, fourth paragraph, and the consequent decision of the General Court to declare the Appellant's action inadmissible, violates Article 47 of the Charter and Articles 6 and 13 ECHR, as general principles of the Union's law.
EN Official Journal of the European Union C 49/16

Reference for a preliminary ruling from the Tribunal du travail de Bruxelles (Belgium) of 30 November 2011 — Patricia Dumont de Chassart v ONAFTS — Office national des allocations familiales pour travailleurs salariés

(Case C-619/11)

2012/C 49/27

Language of the case: French

Referring court

Tribunal du travail de Bruxelles

Parties to the main proceedings

Applicant: Patricia Dumont de Chassart

Defendant: ONAFTS — Office national des allocations familiales pour travailleurs salariés

Question referred

Does Article 79(1) of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community (1) breach the general principles of equality and non-discrimination, enshrined, inter alia, in Article 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950, read, where appropriate, in conjunction with Articles 17, 39 and/or 43 of the consolidated version of the Treaty establishing the European Community, when it is interpreted as allowing the rules equating periods of insurance, employment or self-employment laid down in Article 72 of Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community to apply to the deceased parent alone with the consequence that Article 56bis(1) of the Laws on Family Allowances consolidated on 19 December 1939 excludes, in the case of the surviving parent, irrespective of that parent’s nationality provided he or she is a national of a Member State or provided he or she comes within the scope ratione personae of Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, who has worked in another country of the European Union during the 12-month period referred to in Article 56bis(1) of the Laws on Family Allowances consolidated on 19 December 1939, the opportunity for that parent to provide evidence that he or she fulfils the condition that, in his or her capacity as claimant for the purposes of Article 51(3)(1) of the Laws on Family Allowances consolidated on 19 December 1939, he or she could have received six flat-rate monthly benefit payments during the 12 months preceding the death, whereas the surviving parent, whether he or she is of Belgian nationality or is a national of another Member State of the European Union, who has worked exclusively in Belgium during the 12-month period referred to in Article 56bis(1) of the Laws on Family Allowances consolidated on 19 December 1939, in some cases because he or she has never left Belgian territory, is allowed to adduce such evidence?

(1) OJ, English Special Edition 1971(II), p. 416.
2.

Are a cash payment form signed by the payer in person and/or the procedure for ordering transfers based on a signed cash payment form and the agreed procedure for ordering transfers through online banking (telebanking) to be regarded as ‘payment instruments’ within the meaning of Article 4.23 and Article 52(3) of Directive 2007/64/EC?
3.

In circumstances such as those in the present case, in particular, to what extent is it relevant: (a) Whether the person who makes the supply as a matter of contract is under the overall control of another person? (b) Whether the business knowledge, commercial relationship and experience rests with a person other than that which enters into the contract? (c) Whether all or most of the decisive elements in the supply are performed by a person other than that which enters into the contract? (d) Whether the commercial risk of financial and reputational loss arising from the supply rests with someone other than that which enters into the contracts? (e) Whether the person making the supply, as a matter of contract, sub-contracts decisive elements necessary for such supply to a person controlling that first person and such sub-contracting arrangements lack certain commercial features?
—

declare that the Kingdom of Spain has failed to meet its obligations under Article 56 TFEU (formerly Article 49 TEC) and Article 36 of the EEA Agreement by adopting and maintaining in force Article 46(c) of the consolidated version of the Ley de Regulación de los Planes y Fondos de Pensiones, Article 86 of Real Decreto Legislativo 6/2004 of 29 October 2004 approving the consolidated version of the Ley de ordenación y supervisión de los seguros privados, Article 10 of Real Decreto Legislativo 5/2004 approving the consolidated version of the Ley del Impuesto sobre la renta de los no residentes, and Article 47 of Ley 58/2003 (General Tributaria) of 17 December 2003, pursuant to which foreign pension funds based in other Member States and which offer occupational pension schemes in Spain, and insurance companies which operate in Spain under the freedom to provide services, inter alia, are required to designate a tax representative who is resident in Spain.
2.

The appellant considers that there was an error in the application of the Guidelines on the method of setting fines, and of the principle that penalties are to be tailored to the individual and of the principle of proportionality in relation to the period during which Agroexpansión did not form part of the Dimon group. The appellant considers that, for the purposes of determining the amount of the fine imposed on Agroexpansión for the period prior to its joining the Dimon group, it was not appropriate to apply any adjustment factor to the basic amount of the fine imposed on Agroexpansión since, during that period, Agroexpansión was not a subsidiary of any multinational group. In the alternative, if the Court of Justice considers that a single fine should be imposed, the appellant submits that such a fine should be reduced in order to eliminate the disproportionate adjustment factor applied.
2.

Does Council Directive 77/388/EEC of 17 May 1977 permit a provision such as Article 108 of Spanish Law 24/1988 on the Stock Market, which provides that the acquisition of the majority of the capital of a company whose assets essentially comprise immovable property is liable to an indirect tax other than VAT, namely capital transfer duty, without regard to the possibility that the parties to the transaction may be acting in a business capacity, bearing in mind that had the immovable property been transferred directly, instead of transferring the shares or interests, the transaction would have been subject to VAT?
1.

With regard to the territorial application of Directive 95/46/EC (1) and, consequently, of the Spanish data-protection legislation: 1.1. must it be considered that an ‘establishment’, within the meaning of Article 4(1)(a) of Directive 95/46/EC, exists when any one or more of the following circumstances arise: — when the undertaking providing the search engine sets up in a Member State an office or subsidiary for the purpose of promoting and selling advertising space on the search engine, which orientates its activity towards the inhabitants of that State, or — when the parent company designates a subsidiary located in that Member State as its representative and controller for two specific filing systems which relate to the data of customers who have contracted for advertising with that undertaking, or — when the office or subsidiary established in a Member State forwards to the parent company, located outside the European Union, requests and requirements addressed to it both by data subjects and by the authorities with responsibility for ensuring observation of the right to data protection, even where such collaboration is engaged in voluntarily? 1.2. Must Article 4(1)(c) of Directive 95/46/EC be interpreted as meaning that there is ‘use of equipment … situated on the territory of that Member State’ when a search engine uses crawlers or robots to locate and index information contained in web pages located on servers in that Member State or when it uses a domain name pertaining to a Member State and arranges for searches and the results thereof to be based on the language of that Member State? 1.3. Is it possible to regard as a use of equipment, in the terms of Article 4(1)(c) of Directive 95/46/EC, the temporary storage of the information indexed by internet search engines? If the answer to that question is affirmative, can it be considered that that connecting factor is present when the undertaking refuses to disclose the place where it stores those indexes, invoking reasons of competition? 1.4. Regardless of the answers to the foregoing questions and particularly in the event that the Court of Justice of the European Union considers that the connecting factors referred to in Article 4 of the Directive are not present: must Directive 95/46/EC on data protection be applied, in the light of Article 8 of the European Charter of Fundamental Rights, in the Member State where the centre of gravity of the conflict is located and more effective protection of the rights of European Union citizens is possible?
—

inasmuch as the legislature, which justified the charge as a measure intended to finance the expenditure of the common organisation of the market in sugar even though it actually funds direct aid and/or is intended to preserve the budget neutrality of the ‘2006 sugar reform’, did not clearly and unequivocally set out the reasons for the introduction of the charge as is required by Article 296 TFEU (former Article 253 EC);
2.

Should Question 1 be answered in the negative: Is a national provision such as that applicable in the main proceedings, under which a chargeable event also occurs at the time of an exempt transaction, permissible?
3.

Does Article 63 of Directive 2006/112 preclude a national provision and a national practice whereby the chargeable event in respect of a supply of parts of a building occurs not at the time when ownership is transferred but earlier, that is to say, at the time of the provision of the agreed consideration, which constitutes an exempt transaction effected by a person who does not have the status of a taxable person or that of a person liable for payment?
2.

The third, fourth and fifth pleas concern errors of law, in so far as the General Court held that the Curaçao customs authorities did not know or could not have known that the goods in question were not eligible for preferential treatment at the time of issue of the EUR.1 movement certificates. In the appellant’s submission, in its findings, the General Court fails to have regard to the fact that the Departement of Economic Affairs in Curaçao did at least one check on the location of the exporter before the issue of the EUR.1 movement certificates. In addition, the General Court fails to have regard to the fact that, when issuing an EUR.1 movement certificate, the customs authorities in Curaçao check the origin of the sugar in question in conjunction with the processing thereof so as to verify the rules chosen. The General Court also fails to have regard to the fact that the EUR.1 movement certificates were issued by the customs authorities on the basis of certificates of Form A origin (‘Form A’), pursuant to which it is not possible to issue an EUR.1 movement certificate. When the raw materials enter Curaçao, those customs authorities take delivery of the Form As. The appellant cannot be blamed for the fact that these very forms were lost in a fire in the archives of the customs authorities in Curaçao. Since the archives have been destroyed, it is no longer possible to determine which documents were present in the customs authorities’ file. In the appellant’s submission, the General Court’s conclusion that the administrator would have given these documents to the respondent’s mission if the documents had been present in the administration is not sound. That consideration alone cannot lead to the conclusion that the Form As were not present there, in the light of all the foregoing considerations.
1.

Do Article 49 TFEU, Article 3 TEU, Articles 3, 4, 5 and 6 TFEU, Articles 101 and 102 TFEU and Regulation (EEC) No 2454/1992 (1) and Regulation (EC) No 12/1998 (2) preclude the application of Articles 3(3) and 11 of Law No 21 of 1992 in so far as the latter provisions respectively state that ‘3. The registered office of the carrier, and the garage, must be located, exclusively, within the territory of the municipality which issued the authorisation’ and that ‘…Bookings of car and driver hire shall take place at the garage. Each individual car and driver hire must begin and end at the garage located in the municipality where the authorisation was issued, returning to that garage, although the collection of the user and the user’s arrival at his destination may take place also in other municipalities …’?
EN Official Journal of the European Union C 200/6

Reference for a preliminary ruling from the Hof van Cassatie van België (Belgium) lodged on 20 April 2012 — United Antwerp Maritime Agencies (UNAMAR) NV v Navigation Maritime Bulgare

(Case C-184/12)

2012/C 200/11

Language of the case: Dutch

Referring court

Hof van Cassatie van België

Parties to the main proceedings

Appellant: United Antwerp Maritime Agencies (UNAMAR) NV

Respondent: Navigation Maritime Bulgare

Question referred

Having regard, not least, to the classification under Belgian law of the provisions at issue in this case (Articles 18, 20 and 21 of the Belgian Law of 13 April 1995 relating to commercial agency contracts) as special mandatory rules of law within the terms of Article 7(2) of the Rome Convention, must Articles 3 and 7(2) of the Rome Convention, (1) read, as appropriate, in conjunction with Council Directive 86/653/EEC (2) of 18 December 1986 on the coordination of the laws of the Member States relating to self-employed commercial agents, be interpreted as meaning that special mandatory rules of law of the forum that offer wider protection than the minimum laid down by Directive 86/653/EEC may be applied to the contract, even if it appears that the law applicable to the contract is the law of another Member State of the European Union in which the minimum protection provided by Directive 86/653/EEC has also been implemented?

(1) Convention on the law applicable to contractual obligations opened for signature in Rome on 19 June 1980 (OJ 1980 L 266, p. 1).

(2) OJ 1986 L 382, p. 17.
2.

Does a reasonable ground exist for the assumption that a legitimate expectation with regard to the tariff classification of the article arose for the declarant and obligated party due to the importation of the article and that, according to Article 71(2) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code and with regard to the basic principle of legitimate expectations, the customs tariff number of the article which is stated in the customs declaration is to be applied if, according to the facts of the case in the main proceedings at the time of the making of the customs declaration, the following circumstances were existent: (a) With respect to a customs declaration which was made earlier of the same articles with the same customs tariff number, no samples were taken for analysis by the customs authorities after an examination of the articles recorded in a protocol, including an examination with regard to the tariff classification, and the conclusion was drawn that the articles were consistent with the information in the declaration; (b) no later examination took place after the allocation of the articles to five other customs declarations of the same articles with the same customs tariff number, which had also been made earlier, and, to be more precise, before and after the date of the protocol regarding the customs examination, in which it was established that the customs tariff number was correct?
EN Official Journal of the European Union C 235/6

Reference for a preliminary ruling from the Tribunale di Torre Annunziata (Italy) lodged on 23 April 2012 — Lorenzo Ciampaglia v Sangita Masawan

(Case C-185/12)

2012/C 235/09

Language of the case: Italian

Referring court

Tribunale di Torre Annunziata

Parties to the main proceedings

Applicant: Lorenzo Ciampaglia

Defendant: Sangita Masawan

By order of 3 May 2012, the Court of Justice declared that the reference for a preliminary ruling is manifestly inadmissible and removed the case from the register.
Is there a matter relating to a consumer contract within the meaning of Article 15(1)(c) of Regulation No 44/2001 (1) if a trader has, by the design of his website, directed his activities to another Member State and a consumer domiciled in the territory of that Member State, on the basis of the information on the trader’s website, travels to where his business is located and the parties sign the contract there,

or

does Article 15(1)(c) of Regulation No 44/2001 presuppose in that case that a distance contract is concluded?
1.

Should Article 6(2) (1) of the Convention on the law applicable to contractual obligations be interpreted in such a way that, if an employee carries out the work in performance of the contract not only habitually but also for a lengthy period and without interruption in the same country, the law of that country should be applied in all cases, even if all other circumstances point to a close connection between the employment contract and another country?
EN Official Journal of the European Union C 133/19

Reference for a preliminary ruling from the Verwaltungsgericht Stuttgart (Germany) lodged on 27 February 2012 — Herbert Schaible v Land Baden-Württemberg

(Case C-101/12)

2012/C 133/35

Language of the case: German

Referring court

Verwaltungsgericht Stuttgart

Parties to the main proceedings

Applicant: Herbert Schaible

Defendant: Land Baden-Württemberg

Questions referred

The questions whether

(a) the claimant’s obligation to identify individual animals under Articles 3(1) and 4(2) of Regulation (EC) No 21/2004, (1)

(b) the claimant’s obligation of electronic identification of individual animals under the first subparagraph of Article 9(3) of Regulation (EC) No 21/2004 as amended by Regulation (EC) No 1560/2007, (2) and

(c) the claimant’s obligation to keep holding register C in accordance with Article 5(1) in conjunction with point B(2) of the Annex to Regulation (EC) No 21/2004

are compatible with higher-ranking European Union law and therefore valid are referred to the Court of Justice of the European Union.

(1) Council Regulation (EC) No 21/2004 of 17 December 2003 establishing a system for the identification and registration of ovine and caprine animals and amending Regulation (EC) No 1782/2003 and Directives 92/102/EEC and 64/432/EEC (OJ 2004 L 5, p. 8).

(2) Council Regulation (EC) No 1560/2007 of 17 December 2007 amending Regulation (EC) No 21/2004 as regards the date of introduction of electronic identification for ovine and caprine animals (OJ 2007 L 340, p. 25).
1.

Is a national rule, such as that embodied in the Flemish Decreet van 17 juli 2000 houdende de organisatie van de elektriciteitsmarkt (Decree of 17 July 2000 on the organisation of the market in electricity), as implemented by the Besluit (Decision) of the Flemish Government of 5 March 2004, as amended by the Besluit of the Flemish Government of 25 February 2005 on the promotion of the generation of electricity from renewable energy sources, where — an obligation is imposed on the suppliers of electricity to final customers connected to the distribution network or the transmission network, to submit a certain number of green certificates annually to the Regulatory Authority (Article 23 of the aforementioned Decreet); — an administrative fine is imposed by the Vlaamse Reguleringsinstantie voor de Elektriciteits- en Gasmarkt (VREG) on the suppliers of electricity to final customers connected to the distribution network or the transmission network when the supplier has not submitted a sufficient number of green certificates to fulfil a quota obligation which has been imposed in respect of green certificates (Article 37(2) of the aforementioned Decreet); — it is expressly provided that guarantees of origin from other countries may be submitted under certain conditions in order to fulfil the quota obligation (Article 15c(2) of the Besluit of the Flemish Government of 5 March 2004, as applicable in this case); — the Regulatory Authority cannot or will not take into account any guarantees of origin originating from Norway and that being in the absence of implementing measures on the part of the Flemish Government, which has acknowledged the equality or equivalence of those certificates (Article 25 of the aforementioned Decreet and Article 15c(2) of the Besluit of 5 March 2004), without that equality or equivalence being investigated by the Regulatory Authority in concrete terms; — in fact, during the whole time that the Decreet of 17 July 2000 was in force, only certificates for the production of green energy generated in the Flemish Region were taken into account when ascertaining whether the quota obligation had been fulfilled, whereas for the suppliers of electricity to final customers connected to the distribution network or transmission network there was no possibility whatsoever of demonstrating that the guarantees of origin from other Member States of the European Union met the condition of the existence of equal or equivalent guarantees regarding the granting of such certificates, compatible with Article 11 of the EEA Agreement and/or Article 13 of the EEA Agreement?’