ddrg/super_eurlex huggingface dataset:
1.

Must Article 7 of Decision No 1/80 [of 19 September 1980 on the development of the Association, adopted by the Association Council set up by the Agreement establishing an Association between the European Economic Community and Turkey] be interpreted as meaning that the family members of a Turkish worker duly registered as belonging to the labour force of a Member State cannot invoke that provision once that worker has acquired the nationality of the host Member State while retaining his Turkish nationality?
1.

Does Community law, in particular the principle of the freedom to provide services as laid down in Article 56 TFEU (formerly Article 49 EC), preclude rules such as those laid down in Articles 1 and 1a of Belgian Royal Decree No 20 of 20 July 1970, under which the reduced VAT rate may be applied to construction work only if the service provider is registered in Belgium as a contractor in accordance with Articles 400 and 401 of the Wetboek van Inkomstenbelastingen (Belgian Income Tax Code) 1992?
2.

Must Article 11(6) of Council Regulation (EC) No 1/2003 in conjunction with Article 3(1) thereof and recital 17 in the preamble thereto, with point 51 of the Commission Notice on cooperation within the Network of Competition Authorities, (2) with the principle ne bis in idem under Article 50 of the Charter of Fundamental Rights of the European Union, (3) and with the general principles of European law be interpreted as meaning that if the Commission brings proceedings after 1.5.2004 for infringement of Article 81 EC and makes a decision in that case: a) the Competition Authorities of the Member States are automatically relieved of their competence to deal with that conduct from that time onwards? b) the Competition Authorities of the Member States are relieved of their competence to apply to that conduct the provisions of domestic law containing parallel legislation to Article 81 EC (now Article 101 of the Treaty on the Functioning of the European Union)?
2.

Is national legislation which in regard to the passport for cats and ferrets refers to the model and the additional requirements laid down in the aforementioned Commission Decision of 26 November 2003, yet in addition prescribes that every passport must bear a unique number consisting of thirteen characters, namely, ‘BE’, the ISO code for Belgium, followed by the identification number of the distributor consisting of two digits, and a serial number consisting of nine digits, a technical regulation within the meaning of Article 1 of Directive 98/34/EC (3) of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations which, under Article 8 of that Directive, must be communicated to the European Commission before its enactment?’
EN Official Journal of the European Union C 113/23

Action brought on 11 February 2010 — European Commission v Ireland

(Case C-82/10)

2010/C 113/36

Language of the case: English

Parties

Applicant: European Commission (represented by: N. Yerrell, Agent)

Defendant: Ireland

The applicant claims that the Court should:

— Declare that in failing to apply the European Union insurance legislation in its entirety to all insurance undertakings on a non-discriminatory basis, the Republic of Ireland has failed to fulfil its obligations under, in particular, Articles 6, 8, 9, 13, 15, 16 and 17 of Council Directive 73/239/EEC of 24th July 1973 on the coordination of laws, regulations and administrative provisions relating to the taking-up and pursuit of the business of direct insurance other than life assurance, as subsequently amended, and Articles 22 and 23 of Council Directive 92/49/EEC on the coordination of laws, regulations and administrative provisions relating to the taking-up and pursuit of the business of direct insurance other than life assurance and amending Directives 73/239/EEC and 88/357; and

— order Ireland to pay the costs.

Pleas in law and main arguments

The Commission is of the opinion that i) the Voluntary Health Insurance Board (hereinafter referred to as VHI) could not properly continue to benefit from an exemption under article 4 of directive 73/239/CEE with effect from the first change to its capacity by virtue of the entry into force of the Voluntary Health Insurance (Amendment) Act 1996, and ii) from this date it became fully subject to the requirements of the European Union insurance legislation, including in particular those relating to authorisation, financial supervision, establishment of technical provisions and a solvency margin including the guarantee fund.

VHI currently continues all its operations without having obtained authorisation from the Irish Financial Regulator, nor having complied inter alia with the necessary solvency requirements.
EN Official Journal of the European Union C 100/27

Reference for a preliminary ruling from the Corte Suprema di Cassazione (Italy) lodged on 9 February 2010 — Criminal proceedings against Marcello Costa

(Case C-72/10)

2010/C 100/41

Language of the case: Italian

Referring court

Corte Suprema di Cassazione

Party to the main proceedings

Marcello Costa

Question referred

The Court of Justice is requested to interpret Articles 43 and 49 of the Treaty establishing the European Union with reference to freedom of establishment and freedom to provide services in the sector of betting on sports events in order to establish whether or not those Treaty provisions permit national rules establishing a State monopoly and a system of licences and authorisations which, within the context of a given number of licences: (a) tend generally to protect holders of licences issued at an earlier period on the basis of a procedure that unlawfully excluded some operators; (b) in fact ensure the maintenance of commercial positions acquired on the basis of a procedure that unlawfully excluded certain operators (by, for example, prohibiting new licensees from locating their kiosks within a specified distance of those already in existence; (c) provide cases in which the licence may lapse with forfeiture of very large guarantee deposits, including the case in which the licensee directly or indirectly carries on cross-border gaming activities analogous to those under the licence.
EN Official Journal of the European Union C 113/17

Appeal brought on 1 February 2010 by Agencja Wydawnicza Technopol sp. z o.o. against the judgment of the General Court (Second Chamber) delivered on 19 November 2009 in Case T-298/06: gencja Wydawnicza Technopol sp. z o.o. v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-51/10 P)

2010/C 113/25

Language of the case: English

Parties

Appellant: Agencja Wydawnicza Technopol sp. z o.o. (represented by: A. von Mühlendahl, H. Hartwig, Rechtsanwälte)

Other party to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs)

Form of order sought

The appellant claims that the Court should:

— Annul the Judgment of the Court of First Instance of 19 November 2009 in Case T-298/2006

— Refer the case back to the General Court

— Order OHMI to bear the costs of the proceedings before the Court of Justice

Pleas in law and main arguments

The Appellant claims that the Court of First Instance violated Article 7 (1) (c) CTMR (1) in the it applied erroneous legal criteria in determining that the Appellant's mark was not registrable.

The Appellant further claims that the Court of First Instance violated Article 7 (1) (c) CTMR or Article 76 CTMR, or both of these provisions, in not taken proper account of the practice of OHMI as regards registration of marks consisting of numerals or indication the content of publications.

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark

OJ L 11, p. 1
1.

Does Community law, in particular the principle of the freedom to provide services as laid down in Article 56 TFEU, preclude rules such as those laid down in Articles 1 and 1a of Belgian Royal Decree No 20 of 20 July 1970, under which the reduced rate of VAT (6 %) may be applied to construction work only if the service provider is registered in Belgium as a contractor in accordance with Articles 400 and 401 of the Wetboek van Inkomstenbelastingen (Belgian Income Tax Code) 1992?
4.

Does the broadcasting, free of charge, of phonograms within private dental practices engaged in professional economic activity, for the benefit of patients of those practices and enjoyed by them without any active choice on their part, constitute ‘communication to the public’ or ‘making available to the public’ for the purposes of the application of Article 3(2)(b) of Directive 2001/29/EC?
—

to declare that, by failing to adopt in full the laws, regulations and administrative provisions necessary to comply with Directive 2006/21/EC of the European Parliament and of the Council of 15 March 2006 on the management of waste from extractive industries and amending Directive 2004/35/EC, (1) or by failing to notify the Commission in full of those provisions, the Republic of Austria has failed to fulfil its obligations under Directive 2006/21/EC;
2.

Is a urine drainage bag, manufactured from plastic, which is specially designed for and therefore can only be, and in fact is, used exclusively in connection with a catheter, to be classified under — Chapter 90, CN heading 9018399030, as a ‘part’ and/or ‘accessory’ for a catheter, see chapter note 2(b) to Chapter 90 of the Customs Tariff or — Chapter 39, CN heading 3926 90 99, as plastics or articles thereof?
2.

Are the national provisions requiring employers to compile and maintain numerous social-security documents under Articles 157 to 169 of the Programme Law of 22 December 1989, and under which non-compliance with those provisions is punishable under criminal law, or may result in the imposition of administrative fines and civil-law penalties, compatible with the provisions of Community law and with Council Directive 97/81/EC of 15 December 1997, in particular Clause 5(1)(a) of the Annex thereto, which states that, in the context of the principle of non-discrimination between part-time and full-time workers, the Member States, following consultations with the social partners in accordance with national law or practice, should identify and review obstacles of a legal or administrative nature which may limit the opportunities for part-time work and, where appropriate, eliminate them?
Reference for a preliminary ruling from the Bundespatentgericht (Germany) lodged on 9 March 2010 — Merck & Co Inc v Deutsches Patent- und Markenamt

(Case C-125/10)

(2010/C 161/24)

Language of the case: German

Referring court

Bundespatentgericht

Parties to the main proceedings

Applicant: Merck & Co Inc

Defendant: Deutsches Patent- und Markenamt

Question referred

Can a supplementary protection certificate for medicinal products (1) be granted if the period of time between the filing of the application for the basic patent and the date of first authorisation for marketing in the Community is shorter than five years?

(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 (codified version); OJ 2009 L 152, p. 1
2.

What specific requirements should be satisfied by the reasonableness and suitability of a retirement age arrangement within the meaning of the rules laid down in the Hessisches Beamtengesetz? Are more thorough investigations needed to determine the ratio of the — probable — number of civil servants remaining in service voluntarily after retirement age to the number who wish to receive a full pension on reaching retirement age, if not earlier, and therefore certainly want to leave the service? Would it not be appropriate in this respect to give voluntary retirement preference over compulsory retirement, provided that arrangements are made for pensions to be reduced where they are taken before the set retirement age is reached so as to preclude unreasonable pension budget spending and associated labour costs (voluntary departure rather than compulsion as the more appropriate and, in effect, hardly less suitable arrangement)? Can it be deemed reasonable and necessary to assume it to be irrefutable that all civil servants cease to be fit for service on reaching a given higher age, such as 65 years in this case, and so automatically to terminate their employment as civil servants at that age? Is it reasonable for the possibility to remain employed in the civil service at least until the age of 68 years to be entirely dependent on the employer having special interests, but for employment in the civil service to be terminated with no legal possibility of securing reappointment where no such interests exist? Does a retirement age arrangement which leads to compulsory retirement, rather than being confined to specifying the conditions for entitlement to a full pension, as permitted under Article 6(2) of Directive 2000/78/EC, result in an unreasonable devaluation of the interests of older people relative to the fundamentally no more valuable interests of younger people? If the aim of facilitating recruitment and/or promotion is deemed to be legitimate, what more precise requirements must actually be satisfied to demonstrate the extent to which such opportunities are actually seized by each employer taking advantage of the retirement age arrangement or by all employers, in and outside the general labour market, to whom the statutory arrangement applies? In view of the gaps already to be seen in the labour market owing to demographic trends and of the impending need for skilled staff of all kinds, including staff for the public service of the Federal German and Land governments, is it reasonable and necessary to force civil servants able and willing to continue working to retire from the civil service at a time when there will soon be a major demand for personnel which the labour market will hardly be able to meet? Will it possibly be necessary in the future to collect sectoral labour market data?
EN Official Journal of the European Union C 179/26

Appeal brought on 6 May 2010 by Lufthansa AirPlus Servicekarten GmbH against the judgment of the General Court (Sixth Chamber) delivered on 3 March 2010 in Case T-321/07: Lufthansa AirPlus Servicekarten GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-216/10 P)

2010/C 179/42

Language of the case: English

Parties

Appellant: Lufthansa AirPlus Servicekarten GmbH (represented by: R. Kunze, G. Würtenberger, Rechtsanwälte)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs); Applus Servicios Tecnológicos, SL

Form of order sought

The appellant claims that the Court should:

— set aside the judgment of the General Court of 3 March 2010 in Case T-321/07 Lufthansa AirPlus Servicekarten GmbH v. OHIM — Applus Servicios Tecnológicos, SL (The Judgement under Appeal), by which that court dismissed the action brought against the decision of the Second Board of Appeal of the Office for Harmonization in the Internal Market (Trademarks & Designs) (OHIM) of 7 June 2007 upholding the decision of the Opposition Division, by which the opposition directed against Community trademark application 002 933 356 was rejected;

— following the conclusion of the written proceedings, schedule an oral hearing before the Court of Justice;

— order the Defendant to pay the costs of the proceedings.

Pleas in law and main arguments

The appellant submits that the judgment of the General Court should be set aside on the following grounds:

— the General Court incorrectly upheld the Board of Appeal's assessment pertaining to the criteria of likelihood of confusion pursuant to article 8(1)(b) of the Community Trademark Regulation (1) (CTMR);

— the General Court was incorrect in not dealing with the appellant's opposition based upon article 8(5) CTMR;

— the General Court infringed art 75 CTMR when it held that the Board of Appeal was entitled not to conduct a full examination of the appellant's remaining arguments, in particular those pertaining to the distinctiveness of the appellant's prior trademark registration, ‘for reasons of economy of procedure’;

— the judgment under appeal breaches article 76 CTMR;

— the General Court was wrong when it accepted that the fact that OHIM did not notify the appellant of the change in the owner of the Community Trademark applications, thus depriving it of the opportunity to comment on the change of party, did not give rise to a serious breach of the appellant's right to a fair hearing;

— the General Court issued an Order for costs which was not in compliance with the pertinent provisions of European Union law.

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark

OJ L 11, p. 1
1.

Is Article 5(1) of Directive 2007/36/EC (1) already to be applied, on account of the requirement under European law to refrain from measures liable to compromise a directive, where the national legislature has enacted a measure that will cease to have effect on the expiry of the transposition period but which, during that period, permits the period for convening a general meeting to be shortened to one day, where the general meeting passes a resolution (to increase the capital, subscriptions rights being excluded) that, on statutory grounds, remains valid after registration in the commercial register even if that resolution is annulled on the basis of a successful action for annulment?
—

declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply fully with Directive 2007/44/EC (1) of the European Parliament and of the Council of 5 September 2007 amending Council Directive 92/49/EEC and Directives 2002/83/EC, 2004/39/EC, 2005/68/EC and 2006/48/EC as regards procedural rules and evaluation criteria for the prudential assessment of acquisitions and increase of holdings in the financial sector, or in any event by failing to inform the Commission of those measures, the Hellenic Republic has failed to fulfil its obligations under that directive;
EN Official Journal of the European Union C 209/11

Appeal brought on 18 January 2010 by Paul Inge Hansen against the judgment delivered on 17 November 2009 in Case T-295/09 Paul Inge Hansen v Commission of the European Communities

(Case C-26/10P)

()

2010/C 209/15

Language of the case: Swedish

Parties

Appellant: Paul Inge Hansen (represented by: P. Löfqvist, advokat, and C. von Quitzow, Juris doktor)

Other party to the proceedings: European Commission

The Court (Seventh Chamber) dismissed the action by order of 6 May 2010.
3.

Is the seising of a court in a Member State for isolated provisional measures to be equated to seising as to the substance of the matter within the meaning of Article 19(2) of Regulation No 2201/2003 if under the national rules of procedure of that State a subsequent action to resolve the issue as to the substance of the matter must be brought in that court within a specified period in order to avoid procedural disadvantages?
EN Official Journal of the European Union C 234/23

Appeal brought on 4 June 2010 by PepsiCo, Inc. against the judgment of the General Court (Fifth Chamber) delivered on 18 March 2010 in Case T-9/07: Grupo Promer Mon Graphic SA v Office for Harmonisation in the Internal Market (Trade Marks and Designs), PepsiCo, Inc.

(Case C-281/10 P)

()

2010/C 234/38

Language of the case: English

Parties

Appellants: PepsiCo, Inc. (represented by: E. Armijo Chávarri, A. Castán Pérez-Gómez, abogados, V. von Bomhard, Rechtsanwältin)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Grupo Promer Mon Graphic SA

Form of order sought

The appellant claims that the Court should:

— Set aside the judgment of the General Court of 18 March 2010 in Case T-9/07,

— Give final judgment on the dispute by rejection the order sought at first instance or, in the alternative, remit the case to the General Court and

— Order that the costs of the proceedings be borne by the applicant at first instance.

Pleas in law and main arguments

The appellant submits that the contested judgment should be annulled on the grounds that the General Court violated article 25(1) (d) of Council Regulation (EC) No. 6/2002 (1) by:

a) failing to take into account the constraints on the designer in developing the contested design;

b) wrongly interpreting the notion of the ‘informed user’ and his attention level;

c) applying erroneous criteria in its assessment of ‘different overall impression’;

d) carrying out a comparison between the designs based on actual products in the file rather than on the designs as registered;

e) basing the comparison on distorted facts.

(1) Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs

OJ L 3, p. 1
1.

Does the time during which a forester, who works eight hours a day under his individual contract of employment, is required to carry out wardenship duties in respect of a certain section of the forest for which he is liable to disciplinary action, the payment of compensation and civil or criminal sanctions, as the case may be, for any damage ascertained in the area under his control, regardless of the time when the damage occurs, constitute ‘working time’ within the meaning of Article 2(1) of Directive 2003/88/EC of the European Parliament and of the Council concerning certain aspects of the organisation of working time? (1)
EN Official Journal of the European Union C 234/29

Appeal brought on 9 July 2010 by Claro, S.A. against the judgment delivered by the General Court (Fifth Chamber) on 28 April 2010 in Case T-225/09 Claro, S.A. v OHIM and Telefónica, S.A.

(Case C-349/10 P)

()

2010/C 234/48

Language of the case: Spanish

Parties

Appellant: Claro, S.A. (represented by: E. Armijo Chávarri and Castán Pérez-Gómez, abogados)

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

Form of order sought

The appellant claims that the Court should take cognisance of the appeal lodged and the supporting documents, declare the appeal against the judgment of the Fifth Chamber of the General Court of 28 April 2010 in Case T-225/09 lodged in time and in the required form and, via the appropriate procedure, and set aside the judgment under appeal and grant the form of order sought by Claro, S.A.

Grounds of appeal and main arguments

Erroneous interpretation made by the General Court of Article 59 of the Community trade mark regulation. The appeal is based on the premise that, contrary to the arguments of the General Court (and of the Board of Appeal earlier in the proceedings), the submission of the statement of the grounds for the appeal does not constitute a requirement for the admissibility of the appeal, but constitutes a mere procedural requirement. By its ground of appeal the appellant also claims that that misinterpretation on the part of the General Court (and the Board of Appeal earlier in the proceedings) entailed an infringement of the principle of continuity in terms of their functions between the various departments of OHIM, set out in Article 62(1) of Regulation No 40/94. (1)

(1) Council Regulation of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1).