ddrg/super_eurlex huggingface dataset:
2.

If the answer to the first question referred is in the negative, is national legislation which, in seeking exclusively to combat criminality by exercising control over the undertakings that operate in the sector at issue so as to ensure that those activities are carried out solely within controlled systems, grants a single undertaking the exclusive right to run, manage, organise and operate games of chance compatible with Articles 43 and 49 of the EC Treaty even where grant of the right results in parallel in unrestricted expansion of the supply in question? Or is it necessary in every case, in order for that restriction to be considered suitable for achieving the objective of combating criminality, that the expansion of supply be controlled in any event, that is to say, be only as great as is required in order to achieve that objective? If that expansion must in any event be controlled, can expansion be considered controlled from that point of view if the exclusive right in the sector in question is granted to a body with the attributes described in the first question referred? Finally, if grant of the exclusive right in question is considered to result in controlled expansion of the supply of games of chance, does its grant to just a single undertaking go beyond what is necessary, in the sense that the same objective can also be profitably served by granting that right to more than one undertaking?
EN Official Journal of the European Union C 211/10

Reference for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 6 April 2011 — Dr Manfred Beker and Christa Beker v Finanzamt Heilbronn

(Case C-168/11)

2011/C 211/18

Language of the case: German

Referring court

Bundesfinanzhof

Parties to the main proceedings

Applicants: Dr Manfred Beker and Christa Beker

Defendant: Finanzamt Heilbronn

Question referred

Does Article 56 EC preclude a rule in a Member State by which — in accordance with treaties concluded in order to avoid double taxation — in the case of taxpayers with unlimited tax liability whose foreign revenue is liable to tax corresponding to national (German) income tax in the State in which the revenue originates, the foreign tax is offset against national (German) income tax levied on revenue from that State in such a way that the national (German) income tax resulting from assessment of the revenue to be taxed — including foreign revenue — is apportioned in the proportion that that foreign revenue bears to total revenue — and hence without taking into account special expenditure or extraordinary costs as costs relating to personal life style and personal and family circumstances?
8.

(a) If the third question referred is answered in the affirmative, should the concept ‘authorisation scheme’ in Article 4(6) of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market be interpreted to mean that it is applicable to certificates issued by a public institution after the initial building or land subdivision authorisation has already been given, and which are necessary in order to qualify for certain of the compensations for the performance of a social obligation which was linked by law to the original authorisation and which are also necessary in order to claim the reimbursement of the financial guarantee imposed on the service provider in favour of the public institution? (b) If the third question referred is answered in the affirmative, should the concept of ‘authorisation scheme’ in Article 4(6) of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market be interpreted to mean that it is applicable to an agreement which a private actor concludes with a public institution pursuant to a legal rule in the context of the substitution of the public institution in respect of the sale of a social housing unit developed by the private actor in the performance, in kind, of a social obligation which is linked by law to a building or land subdivision authorisation, taking account of the fact that the conclusion of that agreement is a condition for the executability of the authorisation?
EN Official Journal of the European Union C 226/15

Reference for a preliminary ruling from the Amtsgericht Geldern (Germany) lodged on 24 May 2011 — Nadine Büsch and Björn Siever v Ryanair Ltd

(Case C-255/11)

2011/C 226/28

Language of the case: German

Referring court

Amtsgericht Geldern

Parties to the main proceedings

Applicants: Nadine Büsch and Björn Siever

Defendant: Ryanair Ltd

Questions referred

1. Does the right to compensation laid down in Article 7 of the Air Passenger Rights Regulation (1) constitute a claim for damages which is subject to the limits of liability set out in the Montreal Convention, by virtue of the first sentence of Article 29 (2) thereof, where it is to be granted because of a long delay of a flight?

2. Is the right to compensation under Article 7 of the Air Passenger Rights Regulation non-compensatory within the meaning of the second sentence of Article 29 of the Montreal Convention in so far as it exceeds the damage incurred by the air passenger as a result of the long delay? Does this preclude a right to compensation entirely or does such a right arise in the event of delays only in the amount of the damage actually incurred?

(1) Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 (OJ 2004 L 46, p. 1).

(2) Council Decision of 5 April 2001 on the conclusion by the European Community of the Convention for the Unification of Certain Rules for International Carriage by Air (the Montreal Convention) (OJ 2001 L 194, p. 38).
2.

Does the application of the precautionary principle have as its consequence that such a plan or project cannot be authorised if it would result in the permanent non-renewable loss of the whole or any part of the habitat in question?
2.

In the event that the first question is answered in the affirmative: does the protection of the passive freedom to provide services under the law on the Association Agreement, specifically pursuant to Article 41(1) of the Additional Protocol, also extend to Turkish nationals, who — like the claimant — do not wish to enter the Federal Republic of Germany in order to receive a specific service, but for the purposes of visiting relatives for a stay of up to three months and rely on the mere possibility of receiving services in the Federal territory?
(a)

Does Clause 4(4) of the Annex to Directive 1999/70/EC (1), under which ‘[t]he period-of-service qualifications relating to particular conditions of employment shall be the same for fixed-term workers as for permanent workers except where different length-of-service qualifications are justified on objective grounds’, read in conjunction with Clause 5 thereof, as interpreted by the Court of Justice to the effect that the Italian rules which prohibit, in the context of the public service, the conversion of a fixed-term contract into a contract of unlimited duration are lawful, preclude the national rules on employment stabilisation for workers in precarious employment (Article 1(519) of Law No 296/2006), under which it is possible, in derogation from the rule requiring a public selection procedure, to recruit directly, under contracts of unlimited duration, workers who have already been recruited on fixed-term contracts but with the length of service accrued under those fixed-term contracts being set at nought; or does the loss of length of service, as provided for by the national legislature, fall within the ambit of the derogation relating to ‘objective grounds’, given the need to prevent workers in precarious employment from being admitted to the permanent staff to the detriment of workers already on the permanent staff, which would be the position if it were possible for workers in precarious employment to have the length of service accrued taken into account?
EN Official Journal of the European Union C 238/12

Appeal brought on 14 June 2011 by XXXLutz Marken GmbH against the judgment of the General Court (Sixth Chamber) delivered on 24 March 2011 in Case T-54/09 XXXLutz Marken GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs) and Natura Selection S.L.

(Case C-306/11 P)

2011/C 238/17

Language of the case: German

Parties

Appellant: XXXLutz Marken GmbH (represented by: H. Pannen, Rechtsanwalt)

Other parties to the proceedings:

— Office for Harmonisation in the Internal Market (Trade Marks and Designs)

— Natura Selection S.L.

Form of order sought

— Set aside the judgment under appeal;

— Refer the case back to the General Court;

— Order the Office for Harmonisation in the Internal Market (Trade Marks and Designs) to pay the costs.

Pleas in law and main arguments

The General Court infringed Article 8(1)(b) of the Community Trade Mark Regulation (1) by concluding that the signs ‘Linea Natura Natur hat immer Stil’ and ‘natura selection’ were similar purely on the basis that both signs contained the word element ‘natura’. That word element is not, however, the dominant element of the earlier trade mark.

In its assessment of the similarity of the signs, the General Court started from a legally incorrect understanding of the concepts of ‘distinctive character’ and ‘descriptive character’.

Furthermore, the conclusions of the General Court concerning the similarity of the signs are contradictory and demonstrate in that regard a failure to state reasons.

In the judgment under appeal the General Court also proceeded on the basis of a distortion of the facts. Contrary to the findings of the General Court, the appellant has already demonstrated, in the proceedings before the Opposition Division and the Board of Appeal, that there is a connection between the goods at issue and the word element ‘natura’.

(1) Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ L 2009 78, p. 1).
2.

Must Article 7(4) of Council Regulation (EC) No 423/2007 be interpreted as meaning that circumvention can occur only where the offender formally adapts his conduct — albeit only ostensibly — to the prohibitions arising from Article 7(1) to (3) of Council Regulation (EC) No 423/2007, with the effect that even applying the broadest interpretation that conduct is no longer covered by the prohibitions? Are the elements of the prohibitions on circumvention and on making available economic resources thus mutually exclusive? If answered in the affirmative: can conduct which would not (yet) be covered by the prohibition on making available economic resources (indirectly) nevertheless constitute circumvention within the meaning of Article 7(4) of Council Regulation (EC) No 423/2007? Or does Article 7(4) of Council Regulation (EC) No 423/2007 constitute a catch-all clause, under which any act is covered which is intended to lead to an economic resource being made available to a listed person or entity?
EN Official Journal of the European Union C 252/23

Action brought on 21 June 2011 — European Commission v Republic of Poland

(Case C-313/11)

2011/C 252/44

Language of the case: Polish

Parties

Applicant: European Commission (represented by: D. Bianchi and A. Szmytkowska, acting as Agents)

Defendant: Republic of Poland

Form of order sought

— declare that, by introducing a prohibition on the manufacture, placing on the market and use for animal nutrition in Poland of genetically modified feed and genetically modified organisms intended for feed use, the Republic of Poland has failed to fulfil its obligations under Articles 16(5), 19, 20 and 34 of Regulation (EC) No 1829/2003 of the European Parliament and of the Council of 22 September 2003 on genetically modified food and feed; (1)

— order the Republic of Poland to pay the costs.

Pleas in law and main arguments

The Commission complains that, by adopting the national Law on feed which prohibits the manufacture, placing on the market and use for animal nutrition in Poland of genetically modified feed and genetically modified organisms intended for feed use, the Republic of Poland has failed to fulfil its obligations under Regulation No 1829/2003. As a result of the adoption of that regulation, which introduces full harmonisation in the field of GMO feed authorisations at European Union level, Poland cannot adopt legal provisions prohibiting the placing on the market, use and manufacture in its territory of products that are the subject of such authorisations. Specifically, Poland has infringed:

— Article 16(5) of Regulation No 1829/2003, in accordance with which authorisation for placing on the market, using or processing GMOs for feed use, feed containing or consisting of GMOs and feed produced from GMOs is to be granted, refused, renewed, modified, suspended or revoked only on the grounds given in the regulation and under the procedures set out therein;

— Article 19 of the regulation, which provides that the powers to issue authorisations rest with the Commission;

— Article 20 of the regulation, under which products already placed on the market and authorised pursuant to the law in force prior to the regulation’s entry into force are regarded as authorised pursuant to the regulation;

— Article 34 of the regulation (clause concerning protective measures), a provision which, in view of the full harmonisation of the field in question, constitutes the only possibility for the adoption of emergency measures seeking to suspend or modify an authorisation that has been granted.

It is irrelevant in this regard that the entry into force of the prohibition at issue has been postponed under national law, because the very adoption by the legislature of the contested provisions that are contrary to European Union law and their publication infringe the obligations owed by the Republic of Poland by virtue of the regulation.

(1) OJ 2003 L 268, p. 1.
EN Official Journal of the European Union C 269/31

Reference for a preliminary ruling from the Hof van Cassatie van België (Belgium) lodged on 30 June 2011 — Prorail NV v Xpedys NV and Others

(Case C-332/11)

2011/C 269/59

Language of the case: Dutch

Referring court

Hof van Cassatie van België

Parties to the main proceedings

Appellant: Prorail NV

Respondents:

Xpedys NV

FAG Kugelfischer GmbH

D B Schenker Rail Nederland NV

Nationale Maatschappij der Belgische Spoorwegen NV

Question referred

Must Articles 1 and 17 of Council Regulation (EC) No 1206/2001 (1) of 28 May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters, in the light, inter alia, of European legislation concerning the recognition and enforcement of judgments in civil or commercial matters, and of the principle expressed in Article 33(1) (2) that a judgment given in a Member State is to be recognised in the other Member States without any special procedure being required, be interpreted as meaning that the court which orders an investigation by a judicial expert whose task is to be carried out partly in the territory of the Member State to which the court belongs, but partly also in another Member State, must, for the direct performance of the latter part of the task, make use only and therefore exclusively of the method created by Regulation No 1206/2001 as referred to in Article 17 thereof, or as meaning that the judicial expert assigned by that country may also be charged with an investigation which is to be partly carried out in another Member State of the European Union, outside the provisions of Regulation No 1206/2001?

(1) OJ 2001 L 174, p. 1.

(2) Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1).
EN Official Journal of the European Union C 269/30

Appeal brought on 28 June 2011 by Alder Capital Ltd against the judgment of the General Court (Eighth Chamber) delivered on 13 April 2011 in Case T-209/09: Alder Capital Ltd v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Gimv Nederland BV

(Case C-328/11 P)

2011/C 269/58

Language of the case: English

Parties

Appellant: Alder Capital Ltd (represented by: A. von Mühlendahl, H. Hartwig, Rechtsanwälte)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Gimv Nederland BV

Form of order sought

The appellant requests the Court of Justice to make the following orders:

— The judgment of the General Court of 13 April 2011 in Case T-209/09 and the decision of the Second Board of Appeal of the Office of 20 February 2009 in Case R 486/2008-2 are annulled.

— The costs of the proceedings before the Board of Appeal of the Office, before the General Court and before this Court shall be borne by the Office and by the Intervener.

Pleas in law and main arguments

The Appellant claims that the contested judgment must be annulled on three separate grounds.

The principal ground is that the General Court committed legal error when it held that the Board of Appeal was required, as a matter of law, to review the claim for a declaration of invalidity as it had been presented to the Office's Invalidity Division. The Appellant's claim is that the scope of review was limited to the subject matter of the appeal brought by the Appellant.

The subsidiary grounds are:

— that the General Court committed legal error in dismissing the Appellants’ arguments as ‘irrelevant’ that the Intervener infringed applicable financial services authorisation and regulation and anti-money laundering laws and regulations in offering the services for which its mark ‘Halder’ was used in Germany (infringement of Article 56 (2) and (3) CTMR in conjunction with Article 15 CTMR), and
EN Official Journal of the European Union C 269/19

Reference for a preliminary ruling from the Bundesverwaltungsgericht (Germany) lodged on 24 March 2011 — Jörg-Detlef Müller v Bundesrepublik Deutschland

(Case C-143/11)

2011/C 269/35

Language of the case: German

Referring court

Bundesverwaltungsgericht

Parties to the main proceedings

Applicant: Jörg-Detlef Müller

Defendant: Bundesrepublik Deutschland

Question referred

Does Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation (1) apply to national legislation on the grant of assistance to public servants in cases of illness?

(1) OJ 2000 L 303, p. 16
1.

Is Article 75(2) of Legislative Decree No112/08, which completely disregards length of service under fixed-term working contracts with independent administrative authorities in cases where the workers concerned are established exceptionally — in derogation from the principle in Article 36(5) of Legislative Decree No 165/01 — following ‘selection tests’ which are not comparable with public competitions on the basis of ordinary tests (seeking the optimal employment of successful candidates in the posts to be filled) but which are nevertheless capable of establishing, exceptionally, what should be regarded as a new working relationship valid ‘ex nunc’, compatible, in that it is justified on objective grounds, with clause 4, paragraphe 4, of the Annex to Directive 1999/70/CE, (according to which ‘period-of-service qualifications relating to particular conditions of employment shall be the same for fixed-term workers as for permanent workers except where different length-of service qualifications are justified on objective grounds’)?
4.

Does Council Directive 2000/78/EC preclude the application of a provision of national law under which an employer is entitled to dismiss an employee with a shortened notice period where the employee has received his salary during periods of illness for a total of 120 days during a period of 12 consecutive months, in the case of an employee who must be regarded as disabled within the meaning of the directive, where (a) the absence was caused by the disability or (b) the absence was due to the fact that the employer did not implement the measures appropriate in the specific situation to enable a person with a disability to perform his work?
3.

In the light of its examination … concerning the appraisal of the question as to what is the essential characteristic of the devices here at issue, in the light of, inter alia, the criteria laid down by the Cour d’appel de Paris in its judgment of 20 May 2010 in this matter with regard to devices similar to those here at issue, the Rechtbank requests the Court of Justice to provide it with further guidance on the question whether the value and weight of the central printing unit (the print engine) must be attributed to the print function or to the copying function and whether the value and weight of the scanner must be fully or partly attributed to the copying function.
EN Official Journal of the European Union C 282/9

Reference for a preliminary ruling from the Tribunal Judicial de Santa Maria da Feira (Portugal) lodged on 8 July 2011 — Serafim Gomes Oliveira v Lusitânia Companhia de Seguros SA

(Case C-362/11)

2011/C 282/17

Language of the case: Portuguese

Referring court

Tribunal Judicial de Santa Maria da Feira

Parties to the main proceedings

Applicant: Serafim Gomes Oliveira

Defendant: Lusitânia Companhia de Seguros SA

Question referred

Is the provision of Portuguese law requiring compensation to be reduced in proportion to the fault of both parties in the accident in question, which occurred in November 2006 between a bicycle and a passenger vehicle with compulsory motor insurance, consistent with Community law, even though the cyclist was less than 20 % at fault?
—

Declare that, by not having prepared, by 22 December 2009, river basin district management plans (both for river basin districts lying entirely within its territory and for international river basin districts) and by not having communicated to the Commission, by 22 March 2010, a copy of the draft river basin district management plans, the Kingdom of Belgium has failed to fulfil its obligations under Article 13(2), (3) and (6) and Article 15(1) of Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy. (1) In addition, by having not commenced, by 22 December 2008 at the latest, the public information and consultation procedure concerning the draft river basin district management plans, the Kingdom of Belgium has failed to fulfil its obligations under Article 14(1)(c) of that directive, and
3.

In the event that the service provided in the terms described is not regarded as investment advice, does the mere fact of purchasing a complex financial instrument, into which category falls an interest rate swap arrangement, without the appropriateness test provided for in Article 19(5) of the MiFID Directive being carried out, for reasons imputable to the investment institution, give rise to fundamental nullity of the purchase contract concluded with the same credit institution?
5.

If so, how is the national court to determine whether such a ‘false impression’ has been created? In particular, is the national court required to consider the relative value of the prize as compared with the cost of claiming it in deciding whether a ‘false impression’ has been created? If so, should that ‘relative value’ be assessed by reference to: (a) the unit cost to the promoter in acquiring the prize; or (b) to the unit cost to the promoter in providing the prize to the consumer; or (c) to the value that the consumer may attribute to the prize by reference to an assessment of the ‘market value’ of an equivalent item for purchase?