ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 252/12

Appeal brought on 13 May 2011 by Longevity Health Products, Inc against the judgment of the General Court (Sixth Chamber) delivered on 9 March 2011 in Case T-190/09 Longevity Health Products, Inc v Office for Harmonisation in the Internal Market (Trade Marks and Designs); other party: Performing Science LLC

(Case C-222/11 P)

2011/C 252/24

Language of the case: German

Parties

Appellant: Longevity Health Products, Inc (represented by: J. Korab, Rechtsanwalt)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Performing Science LLC

Form of order sought

— Declare the appeal by the company Longevity Health Products, Inc admissible;

— Set aside the judgment of the General Court of 9 March 2011 in Case T-190/09;

— Order the Office for Harmonisation in the Internal Market to pay the costs.

Pleas in law and main arguments

The restriction of the right to register a mark can be justified only in the public interest, for example in order to avoid a possible deception of certain trade circles. That can however be excluded in the present case because both experts and lay people are able to distinguish between the trade mark wording 5 HTP and the systematic designation for 5-hydroxy-tryptophan.

Experts such as chemists and veterinary surgeons are aware that even minor changes in chemical nomenclature terms or chemical formulae could lead to significant differences in substance structure. That circle of persons would therefore without further consideration continue to use the correct chemical designation, which is not the same as the trade mark.

‘Informed persons’, that is lay people and consumers interested in the products concerned, are also aware that the designations of different substances drawn from chemical nomenclature may differ only slightly, but that a minimal name difference is in fact associated with massive differences in the pharmacological, chemical or physical characteristics of those substances.

Lay persons who are not interested in the products concerned are in any case not able to recognise any connection between the trade mark name 5 HTP and the substance 5-hydroxy-tryptophan and therefore cannot also be misled thereby.
EN Official Journal of the European Union C 269/29

Reference for a preliminary ruling from the Sąd Rejonowy w Koszalinie (Republic of Poland), lodged on 28 June 2011 — Krystyna Alder and Ewald Alder v Sabina Orłowska and Czesław Orłowski

(Case C-325/11)

2011/C 269/56

Language of the case: Polish

Referring court

Sąd Rejonowy w Koszalinie

Parties to the main proceedings

Claimants: Krystyna Alder, Ewald Alder

Defendants: Sabina Orłowska, Czesław Orłowski

Question referred

Are Article 1(1) of Regulation (EC) No 1393/2007 of the European Parliament and of the Council of 13 November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (1) and Article 18 of the Treaty on the Functioning of the European Union to be interpreted as meaning that it is permissible to place in the case file, deeming them to have been effectively served, court documents which are addressed to a party whose place of residence or habitual abode is in another Member State, if that party has failed to appoint a representative who is authorised to accept service and is resident in the Member State in which the court proceedings are being conducted?

(1) Regulation (EC) No 1393/2007 of the European Parliament and of the Council of 13 November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents), and repealing Council Regulation (EC) No 1348/2000 (OJ 2007 L 324, p. 79).
EN Official Journal of the European Union C 269/25

Reference for a preliminary ruling from the Bundeskommunikationssenat (Austria) lodged on 8 June 2011 — Sky Österreich GmbH v Österreichischer Rundfunk

(Case C-283/11)

2011/C 269/47

Language of the case: German

Referring court

Bundeskommunikationssenat

Parties to the main proceedings

Applicant: Sky Österreich GmbH

Defendant: Österreichischer Rundfunk

Question referred

Is Article 15(6) of Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) (1) compatible with Articles 17 and 16 of the Charter of Fundamental Rights of the European Union and with Article 1 of Protocol No 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms (Protocol No 1 to the ECHR)?

(1) OJ 2010 L 95, p. 1.
1.

Is Article 138(1) of Directive 2006/112 (1) to be interpreted as meaning that the sale of a product is exempt from VAT if the product is sold to a buyer who is registered for VAT in another Member State at the time when the sale contract is concluded, and the buyer concludes the sale contract in respect of the product in such a way that the right of disposal and right of ownership are transferred to the buyer upon loading onto the mode of transportation, and the buyer assumes the obligation of transportation to the other Member State?
3.

(in the event of a negative response to the first question and whatever the answer to the first question, whether affirmative or negative): Is Annex (XI)(G)(3)(a) of Regulation (EC) No 883/2004 (2) of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems applicable by analogy, in the case described in these proceedings, with the aim of satisfying the Community objectives set out in Article 48 of the Treaty on the Functioning of the European Union and Article 3 of Regulation No 1408/71/EEC of 14 June, on the application of social security schemes to employed persons, to self-employed persons and their families moving within the European Union, and, as a result, is it possible to cover the contribution period in Portugal with the basis of contributions in Spain closest in time to that period, taking into account the evolution of consumer prices?
EN Official Journal of the European Union C 282/6

Reference for a preliminary ruling from the Rechtbank van eerste aanleg te Antwerpen (Belgium) lodged on 4 July 2011 — Argenta Spaarbank NV v Belgische Staat

(Case C-350/11)

2011/C 282/11

Language of the case: Dutch

Referring court

Rechtbank van eerste aanleg te Antwerpen

Parties to the main proceedings

Applicant: Argenta Spaarbank NV

Defendant: Belgische Staat

Question referred

Does Article 43 EC [now Article 49 TFEU] preclude national tax legislation pursuant to which, for the purposes of the calculation of its taxable profit, a company subject to unlimited tax liability in Belgium cannot apply a deduction in respect of risk capital in the amount of the positive difference between (i) the net book value of the assets of the establishments that that company runs in another Member State of the European Union and (ii) the total liabilities that are imputable to those establishments, whereas it can apply a deduction in respect of risk capital if that positive difference can be imputed to a permanent establishment located in Belgium?
—

declare that, by failing to implement, correctly and fully, in its own legal order Council Directives 73/239/EEC (1) and 92/49/EEC, (2) the Republic of Slovenia has failed to fulfil its obligations under Article 8(3) of Directive 73/239/EEC and Articles 29 and 39 of Directive 92/49/EEC, and its obligations under Articles 56 and 63 of the Treaty on the functioning of the European Union;
1.

Is Article 217(2) of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code (OJ 1992 L 302, p. 1) to be interpreted as meaning that, when determining the practical procedures for the entry in the accounts of the amounts of duty, the Member States can confine themselves to including in their national legislation provisions stipulating merely: — that, for the purposes of such national legislation, ‘entry in the accounts’ is to mean ‘the entry, in the accounts or on any alternative medium, of the amount of duty corresponding to a customs debt’ — in this case, Article 1(6) of the General Law on customs and excise duty (Algemene Wet inzake douane en accijnzen), coordinated by the Royal Decree of 18 July 1977 (Belgisch Staatsblad of 21 September 1977, p. 11425), confirmed by the Law of 6 July 1978 on customs and excise duty (Wet inzake douane en accijnzen) (Belgisch Staatsblad of 12 August 1978, p. 9013) and replaced, with effect from 1 January 1994, by Article 1(4) of the Law amending the general law on customs and excise duty (Wet tot wijziging van de algemene wet inzake douane en accijnzen) (Belgisch Staatsblad of 30 December 1993, p. 29031); and — that the rules relating to entry in the accounts and conditions of payment of the amounts of duty payable pursuant to a customs debt are laid down in the regulations of the European Communities — in this case, Article 3 of the General Law on customs and excise duty, coordinated by the Royal Decree of 18 July 1977 (Belgisch Staatsblad of 21 September 1977, p. 11425), confirmed by the Law of 6 July 1978 on customs and excise duty (Belgisch Staatsblad of 12 August 1978, p. 9013), as amended, with effect from 1 July 1990, by Article 72 of the Law of 22 December 1989 relating to tax provisions (Wet houdende fiscale bepalingen) (Belgisch Staatsblad of 29 December 1989, p. 21141), or must the Member States, in implementing Article 217(2) of the Community Customs Code, determine in their national legislation how the entry in the accounts provided for in Article 217(1) of the Community Customs Code is to be effected in practice, so that a debtor can ascertain whether such entry in the accounts has actually been effected by the customs authorities?
EN Official Journal of the European Union C 282/2

Reference for a preliminary ruling from First-tier Tribunal (Tax Chamber) (United Kingdom) made on 20 June 2011 — Grattan plc v The Commissioners of Her Majesty's Revenue & Customs

(Case C-310/11)

2011/C 282/03

Language of the case: English

Referring court

First-tier Tribunal (Tax Chamber)

Parties to the main proceedings

Applicant: Grattan plc

Defendant: The Commissioners of Her Majesty's Revenue & Customs

Question referred

In relation to the period before 1 January 1978, does a taxable person have a directly effective right under Article 8(a) of the Second Council Directive of 11 April 1967 (67/228/EEC (1)), and/or the principles of fiscal neutrality and of equal treatment, to treat the basis of assessment of a supply of goods as retrospectively reduced where, after the time of that supply of goods, the recipient of the supply received a credit from the supplier which the recipient then elected either to take as a payment of money, or as a credit against amounts owed to the supplier in respect of supplies of goods to the recipient that had already taken place?

(1) Second Council Directive 67/228/EEC of 11 April 1967 on the harmonisation of legislation of Member States concerning turnover taxes — Structure and procedures for application of the common system of value added tax

OJ 71, p. 1303
EN Official Journal of the European Union C 290/2

Action brought on 12 July 2011 — European Commission v Kingdom of Belgium

(Case C-370/11)

2011/C 290/02

Language of the case: French

Parties

Applicant: European Commission (represented by: W. Mölls, Agent)

Defendant: Kingdom of Belgium

Form of order sought

— find that, by maintaining rules according to which the capital gains obtained on the buying back of shares of undertakings for collective investment which are not authorised in accordance with Directive 85/611/EEC (1) are not taxable, where those undertakings are established in Belgium, whereas the capital gains obtained on the buying back of shares of such undertakings established in Norway or Iceland are taxable, the Kingdom of Belgium has failed to fulfil its obligations under Articles 36 and 40 of the Agreement on the European Economic Area;

— order the Kingdom of Belgium to pay the costs.

Pleas in law and main arguments

The Commission criticises the national provisions at issue in so far as they have the effect of deterring Belgian residents from investing in undertakings for collective investment established in Norway or Iceland, because capital gains obtained on the buying back of shares of those undertakings cannot benefit from the tax exemption applicable to capital gains obtained on the buying back of shares of undertakings for collective investment established in Belgium.

The Commission claims that such a difference of treatment restricts the free movement of capital guaranteed by Article 40 of the EEA Agreement. Similarly, it hinders the freedom to provide services which amounts to an infringement of Article 36 of the EEA Agreement.

In response to the objections raised by the Belgian authorities, the Commission states, first, that the distinction made by Belgian legislation within the category of undertakings for collective investment established in the European Union, that is, whether they are authorised or not in accordance with Directive 85/611/EEC, is not the subject of the present action. Second and third, the Commission rejects the arguments that the abovementioned measures are justified by reasons linked to the effectiveness of fiscal controls or the absence of measures for the exchange of information. In that context, the Commission notes that Belgium, Norway and Iceland have ratified the Convention on mutual administrative assistance in tax matters drafted under the auspices of the OECD and the Council of Europe and that the double taxation conventions concluded between Belgium, and Norway and Iceland respectively, provide for the exchange of information among those countries.

(1) Council Directive 85/611/EEC of 20 December 1985 on the coordination of laws, regulations and administrative provisions relating to undertakings for collective investment in transferable securities (UCITS), OJ 1985 L 375, p. 3.
EN Official Journal of the European Union C 311/20

Reference for a preliminary ruling from the Amtsgericht Münster (Germany) lodged on 1 August 2011 — Criminal proceedings against Thomas Karl-Heinz Kerkhoff

(Case C-408/11)

2011/C 311/34

Language of the case: German

Referring court

Amtsgericht Münster (Germany)

Parties to the main proceedings

Thomas Karl-Heinz Kerkhoff

Staatsanwaltschaft Münster

Question referred

Is Article 11(4) of Directive 2006/126/EC (1) to be interpreted as meaning that a Member State is entitled to refuse, on a long-term basis, to recognise a driving licence issued by another Member State, if the holder previously had his driving licence withdrawn on the territory of the first Member State, without a separate period of suspension before a new licence is issued having been imposed or a period of suspension imposed having expired?

(1) Directive 2006/126/EC of the European Parliament and of the Council of 20 December 2006 on driving licences (Recast); OJ 2006 L 403, p. 18.
—

Declare that, by failing to adopt the legislative, regulatory and administrative measures necessary to transpose correctly the provisions of Article 2(1) and (3) and Article 5(1), (2) and (4) of Directive 2000/53/EC of the European Parliament and of the Council of 18 September 2000 on end-of life vehicles (1), the Kingdom of Belgium has failed to fulfil its obligations under that directive;
EN Official Journal of the European Union C 311/27

Reference for a preliminary ruling from High Court of Justice (Chancery Division) (United Kingdom) made on 26 August 2011 — Novartis AG v Actavis UK Ltd

(Case C-442/11)

2011/C 311/44

Language of the case: English

Referring court

High Court of Justice (Chancery Division)

Parties to the main proceedings

Applicant: Novartis AG

Defendant: Actavis UK Ltd

Questions referred

Where a supplementary protection certificate has been granted for a product as defined by Regulation (EC) No 469/2009 (1) for an active ingredient, are the rights conferred by that certificate pursuant to Article 5 of the Regulation in respect of the subject matter as defined in Article 4 of the Regulation infringed:

(i) by a medicinal product that contains that active ingredient (in this case valsartan) in combination with one or more other active ingredients (in this case hydrochlorothiazide); or

(ii) only by a medicinal product that contains that active ingredient (in this case valsartan) as the sole active ingredient?

(1) Regulation (EC) No 469/2009 of the European Parliament and of the Council of 6 May 2009 concerning the supplementary protection certificate for medicinal products

OJ L 152, p. 1
EN Official Journal of the European Union C 311/21

Appeal brought on 10 August 2011 by the Prezes Urzędu Komunikacji Elektronicznej against the order made by the General Court (Seventh Chamber) on 23 May 2011 in Case T-226/10 Prezes Urzędu Komunikacji Elektronicznej v Commission

(Case C-422/11 P)

2011/C 311/37

Language of the case: Polish

Parties

Appellant: Prezes Urzędu Komunikacji Elektronicznej (represented by: D. Dziedzic-Chojnacka, D. Pawłowska)

Other party to the proceedings: European Commission

Form of order sought

— set the order aside and refer the case back to the General Court of the European Union for further examination;

— order the European Commission to pay the costs.

Pleas in law and main arguments

The reason for dismissal of the action was the employment relationship between the lawyers representing the Prezes Urzędu Komunikacji Elektronicznej (President of the Office for Electronic Communications) and the Office for Electronic Communications, which, according to the General Court, precludes those lawyers from representing the applicant before it.

The Prezes Urzędu Komunikacji Elektronicznej puts forward the following pleas in law in challenging the contested order.

First, the General Court infringed the third and fourth paragraphs of Article 19 of the Statute of the Court of Justice, in conjunction with the first paragraph of Article 53 of the Statute, and also in conjunction with the sixth paragraph of Article 254 TFEU and Article 113 of the Rules of Procedure of the General Court (‘the Rules of Procedure’), because it misinterpreted the first-named provision and held that it does not cover lawyers employed under an employment contract concluded with a party to proceedings before the General Court.

Second, the General Court infringed Article 67(1) TFEU, in conjunction with Article 113 of the Rules of Procedure, because it failed to respect the different legal system and legal tradition of a Member State and it dismissed the action on the basis of finding that lawyers in an employment relationship have a lesser degree of independence than lawyers pursuing their activities in chambers independent of the client.

Third, the General Court infringed Article 5(1) and (2) TEU, in conjunction with Article 4(1) TEU and in conjunction with Article 113 of the Rules of Procedure, by holding that the provisions of the Treaty permit differentiation as to the scope of the rights of lawyers in relation to representation before the General Court although the law of the Member State does not provide for such differentiation and competence in this area has not been accorded to the European Union by the Treaties.

Fourth, the General Court infringed Article 5(4) TEU, in conjunction with Article 113 of the Rules of Procedure, by accepting that it is necessary, in order to achieve objectives of the Treaties, not to grant lawyers in an employment relationship the right to represent a party in proceedings before the General Court.

Fifth, the General Court committed a procedural infringement because the reasons stated in the contested order are inadequate.
3.

In the light of the case-law of the Court of Justice on the principle of further effects (Case C-145/86 Hoffmann v Krieg [1988] ECR 645), are Articles 32 and 33 of Brussels I to be interpreted to the effect that each Member State is required to recognise the judgments of a court or tribunal of another Member State on the effectiveness of an agreement conferring jurisdiction between the parties, where the finding as to the effectiveness of the agreement conferring jurisdiction has become final under the national law of the first court, even where that decision forms part of a judgment on a procedural matter dismissing the action?
4.

Infringement of the maximum amount of the fine provided for in Article 23 of Regulation 1/2003, (2) the presumption of innocence set out in Article 48(1) of the Charter of Fundamental Rights of the European Union and Article 6(2) of the ECHR, the nulla poena sine lege principle set out in Article 49(1) of the Charter of Fundamental Rights of the European Union, the principle of proportionality in Article 49(3) of the Charter of Fundamental Rights of the European Union, the principle that penalties must fit the offence and the principle of personal liability for penalties on account of the confirmation of the appellant’s joint and several liable for the entire amount of the fine calculated on the basis of the group turnover.
If the previous question is answered in the affirmative, does the Hungarian State have a responsibility to pay compensation for damage both to the applicants and to those injured in road traffic accidents caused by the applicants?

The relevant wording of the Directive is as follows: ‘Member States shall take the necessary steps to ensure that all compulsory insurance policies against civil liability arising out of the use of vehicles cover, on the basis of a single premium and during the whole term of the contract, the entire territory of the Community [as regards the damage caused]’.
2.

If Article 4a of Directive 1999/32/EC, as amended by Directive 2005/33/EC, is not to be interpreted as having the meaning proposed in Question 1, is that provision — in so far as it limits to 1.5 % m/m the sulphur content of fuel for use by passenger ships operating regular services to or from a Community port, including ships flying the flag of a non-European Union State which is party to Annex VI to the MARPOL Convention, pursuant to which, outside SEC areas, the 4,5 % m/m sulphur content limit applies — invalid on the basis that it is contrary to the general principle of international law pacta sunt servanda and to the principle of cooperation in good faith as between the Community and its Member States, in that it requires Member States which have agreed to and ratified Annex VI to act in breach of the obligations entered into towards the other States which are party to Annex VI to the MARPOL Convention 73/78?
3.

If Question 2 is answered affirmatively: can the requirements laid down in the directive relating to fair compensation for exceptions or limitations to the right of reproduction under Article 5(2) and (3) of the directive, having regard to the fundamental right to equal treatment under Article 20 of the EU Charter of Fundamental rights, be fulfilled also where the appropriate reward must be paid not by the manufacturers, importers and traders of the printers but by the manufacturers, importers and traders of another device or several other devices of a chain of devices capable of making the relevant reproductions?