ddrg/super_eurlex huggingface dataset:
—

Distortion of the clear sense of the facts and of the list of goods and services actually designated in the trade mark application and misinterpretation of the judgment of the Court of Justice in Canon (2), paragraph 23, in conjunction with the judgments of the Court of Justice of 9 December 1981 in Case 193/80 and of 15 October 1985 in Case 281/83. This part of the plea alleges that the General Court restricted the list of goods actually designated in the Community trade mark application, limiting the general category ‘vinegars’ to ‘wine vinegar’, taking as its basis two arguments: the first entailing taking into account a national legislative definition of ‘vinegar’, which is indirect and in the nature of a reference, namely the Disposición Adicional Primera de la Ley española 24/2003 de la Viña y el Vino (First Additional Provision to the Law concerning grapevines and wine), instead of a direct normative definition based on Community law and confirmed by the judgments of the Court of Justice of 9 December 1981 in Case 193/80 and of 15 October 1985 in Case 281/83. In those judgments it is clearly stated that Community law interprets vinegar as a generic term and wholly dissociates it from any meaning requiring it to be derived from wine. The second argument used by the General Court to equate the category ‘vinegar’ with ‘wine vinegar’ consists in stating that wine producers usually also produce wine vinegar, which amounts to begging the question since such a statement is in turn based on the equation of the category ‘vinegar’ with ‘wine vinegar’. Furthermore, for the purpose of drawing a comparison in the context of the analysis of the likelihood of confusion, the judgments in Case 193/80 and Case 281/83 establish a connection between the generic character of vinegar and the relevant territory. The General Court, however, distorted the relevant territory when it stated that the type of vinegar most commonly produced and consumed ‘in the world’ is wine vinegar, since the territory to be considered is that of the European Union.
EN Official Journal of the European Union C 328/26

Action brought on 8 October 2010 — European Commission v Hellenic Republic

(Case C-485/10)

()

2010/C 328/44

Language of the case: Greek

Parties

Applicant: European Commission (represented by: B. Stromsky and M. Konstantinidis)

Defendant: Hellenic Republic

Form of order sought

The Court is asked to:

— declare that, by failing to take, within the period prescribed, all the measures necessary to implement Commission Decision E(2008) 3118 of 2 July 2008 (as rectified by the Commission Decision of 13 August 2008) on aid granted to Hellenic Shipyards SA or, in any event, by failing to give sufficient information to the Commission on the measures taken in accordance with Article 19 of the decision, the Hellenic Republic has failed to fulfil its obligations under Articles 2, 3, 5, 6, 8, 9 and 11 to 18 of that decision and under the Treaty on the Functioning of the European Union;

— order the Hellenic Republic to pay the costs.

Pleas in law and main arguments

The subject of the Commission’s action is the non-implementation by the Hellenic Republic of the Commission's decision relating to illegal State aid in favour of Hellenic Shipyards SA which must be recovered from the non-military part of that undertaking.

The Commission points out that the Hellenic Republic should have ensured implementation of the decision within four months of the date of its notification. The decision was published on 13 August 2008 and the Commission did not grant any extension for implementation of the decision. Consequently, the period for compliance formally expired on 13 December 2008.

The Commission states that, in accordance with the settled case-law of the Court, the only justification that may be put forward by a Member State in an action for failure to fulfil obligations brought by the Commission pursuant to Article 108(2) of the Treaty on the Functioning of the European Union is that is absolutely impossible for it properly to implement the decision.

However, in this case the Greek authorities have never raised the argument of absolute impossibility of implementation. On the contrary, from the outset they expressed their intention to implement the decision as rapidly as possible. Nevertheless, the Commission notes that as of the date on which this action was lodged, they have not taken any steps that would constitute even partial implementation of the decision.

The Commission considers that Greece has not taken the necessary action to implement the decision either in accordance with the solution discussed between its services and the competent Greek authorities or in any other appropriate way.
EN Official Journal of the European Union C 328/16

Appeal brought on 21 September 2010 by Luigi Marcuccio against the order of the General Court (Sixth Chamber) of 6 July 2010 in Case T-401/09 Marcuccio v Court of Justice

(Case C-460/10 P)

()

2010/C 328/31

Language of the case: Italian

Parties

Appellant: Luigi Marcuccio (represented by: G. Cipressa, lawyer)

Other party to the proceedings: Court of Justice of the European Union

Form of order sought

The appellant claims that the Court should:

— set aside in its entirety and without exception the order of 6 July 2010 of the General Court (Sixth Chamber) in Case T-401/09 Marcuccio v Court of Justice.

— declare that the action at first instance, in relation to which the order under appeal was made, was admissible in its entirety and without exception;

— allow in its entirety and without any exception whatsoever the relief sought at first instance and order the defendant at first instance to reimburse the appellant in respect of all costs, disbursements and fees incurred by him in relation to all proceedings, including the present appeal proceedings;

— in the alternative, refer the case back to the court at first instance, sitting in a different formation, for a fresh decision.

Pleas in law and main arguments

The order under appeal is unlawful, on the following grounds, inter alia: (a) incorrect and unreasonable interpretation and application of the principle of law relating to Aquilian liability and illogical and unreasoned failure to have regard to the relevant case-law of the European Union; (b) total failure to state reasons, manifest error of assessment, distortion of facts, incomplete and incorrect assessment of the evidence adduced by the appellant, infringement of the the obligation of clare loqui and irrelevant, self-evident, arbitrary, illogical, irrational and unreasonable reasoning; (c) failure to rule on fundamental aspects of the case and total absence of preliminary enquiries; (d) failure to comply with the duty on the part of the court to base its rulings, including in relation to its assessment of the evidence, on the concepts of common knowledge, experience and feeling; (e) incorrect and unreasonable interpretation and application of the rules of law relating to the burden of proof.
—

declare that, by failing to adopt all the laws, regulations and administrative provisions necessary to comply with Directive 2007/36/EC of the European Parliament and of the Council of 11 July 2007 on the exercise of certain rights of shareholders in listed companies (1) or, in any event, by not communicating them to the Commission, the French Republic has failed to fulfil its obligations under that directive;
EN Official Journal of the European Union C 346/35

Reference for a preliminary ruling from the Raad van State (Netherlands) lodged on 20 October 2010 — Staatssecretaris van Justitie v M. Singh

(Case C-502/10)

()

2010/C 346/61

Language of the case: Dutch

Referring court

Raad van State

Parties to the main proceedings

Appellant: Staatssecretaris van Justitie

Other party: M. Singh

Question referred

Is the concept of formally limited residence permit within the meaning of Article 3(2)(e) of Council Directive 2003/109/EC (1) of 25 November 2003 concerning the status of third-country nationals who are long-term residents to be interpreted as including a fixed-period residence permit which, under Netherlands law, does not offer any prospect of a residence permit of indefinite duration, even if, under Netherlands law, the period of validity of the fixed-period residence permit can in principle be extended indefinitely and also if a particular group of people, such as spiritual leaders and religious teachers, are thereby excluded from the application of the Directive?

(1) OJ 2004 L 16, p. 44.
1.

In proceedings for infringement of the exclusive right conferred by a registered Community design, does the right to prevent the use thereof by third parties provided for in Article 19(1) of Council Regulation (EC) No 6/2002 (1) of 12 December 2001 on Community designs extend to any third party who uses another design that does not produce on informed users a different overall impression or, on the contrary, is a third party who uses a subsequent Community design registered in his name excluded until such time as that design is declared invalid?
EN Official Journal of the European Union C 13/17

Reference for a preliminary ruling from the Sąd Najwyższy (Poland) lodged on 12 October 2010 — Criminal proceedings against Łukasz Marcin Bonda

(Case C-489/10)

()

2011/C 13/29

Language of the case: Polish

Referring court

Sąd Najwyższy

Party to the main proceedings

Łukasz Marcin Bonda

Question referred

What is the legal nature of the sanction provided for in Article 138 of Commission Regulation (EC) No 1973/2004 of 29 October 2004 laying down detailed rules for the application of Council Regulation (EC) No 1782/2003 as regards the support schemes provided for in Titles IV and IVa of that Regulation and the use of land set aside for the production of raw materials (OJ 2004 L 345, p. 1) which consists in refusing a farmer direct payments in the years immediately following the year in which he submitted an incorrect statement as to the size of the area forming the basis for direct payments?
EN Official Journal of the European Union C 346/25

Reference for a preliminary ruling from the Tribunale Amministrativo Regionale per la Lombardia — Sezione Terza (Italy) lodged on 5 July 2010 — E.On Produzione SpA v Autorità Per l’Energia Elettrica e il Gas

(Case C-331/10)

()

2010/C 346/42

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale per la Lombardia — Sezione Terza

Parties to the main proceedings

Applicant: E.On Produzione SpA

Defendant: Autorità Per l’Energia Elettrica e il Gas

Question referred

Do Articles 23, 43, 49 and 56 of the Treaty and Article 11(2) and (6) and Article 24 of Directive 54/03/EC (1) preclude national legislation which, without the European Commission having been notified, requires on a permanent basis certain electricity producers which are, in certain circumstances, essential for the purpose of meeting the requirements of the demand for dispatching services, to submit bids on the energy exchange markets, in accordance with programmes determined by the network operator in accordance with external rules, and which prevents producers from freely determining the remuneration for such bids by linking the remuneration to criteria that have not been pre-determined according to transparent, non-discriminatory and market-based procedures?

(1) OJ 2003 L 176, p. 37
1.

Having regard to the provisions of Article 13 thereof, does Directive 85/374/EEC of 25 July 1985 (1) permit the implementation of a liability system based on the special situation of patients in public health establishments, in so far as it recognises, inter alia, that they have the right to obtain from such establishments, even in the absence of fault on the part of those establishments, compensation for injury caused by the failure of products and equipment which they use, without prejudice to the possibility for the establishment to seek indemnity from the producer?
EN Official Journal of the European Union C 13/16

Reference for a preliminary ruling from the Varhoven administrativen sad (Bulgaria) lodged on 7 July 2010 — Krasimir Asparuhov Estov, Monika Lucien Ivanova and ‘KEMKO INTERNATIONAL’ EAD v Ministerski savet na Republika Bulgaria

(Case C-339/10)

()

2011/C 13/26

Language of the case: Bulgarian

Referring court

Varhoven administrativen sad

Parties to the main proceedings

Applicants: Krasimir Asparuhov Estov, Monika Lyusien Ivanova and ‘KEMKO INTERNATIONAL’ EAD

Defendant: Ministerski savet na Republika Bulgaria

By order of 12 November 2010, the Court of Justice (Eight Chamber) held that it clearly has no jurisdiction to rule on the questions referred by the Varhoven administrativen sad (Bulgaria).
EN Official Journal of the European Union C 38/8

Reference for a preliminary ruling from the Vestre Landsret (Denmark) lodged on 13 December 2010 — Niels Møller v Haderslev Kommune

(Case C-585/10)

2011/C 38/10

Language of the case: Danish

Referring court

Vestre Landsret

Parties to the main proceedings

Applicant: Niels Møller

Defendant: Haderslev Kommune

Question referred

Is subheading 6.6(c) of Annex I to Council Directive 96/61/EC of 24 September 1996 (1) concerning integrated pollution prevention and control to be interpreted as covering places for gilts?

(1) OJ L 257, p. 26
EN Official Journal of the European Union C 30/20

Reference for a preliminary ruling from the Magyar Köztársaság Legfelsőbb Bírósága (Hungary) lodged on 15 November 2010 — ERSTE Bank Hungary Nyrt v Magyar Állam, B.C.L Trading GmbH, ERSTE Befektetési Zrt.

(Case C-527/10)

()

2011/C 30/34

Language of the case: Hungarian

Referring court

Magyar Köztársaság Legfelsőbb Bírósága

Parties to the main proceedings

Applicant: ERSTE Bank Hungary Nyrt

Defendants: Magyar Állam, B.C.L Trading GmbH, ERSTE Befektetési Zrt.

Intervener: dr. Bárándy és Társai Ügyvédi Iroda, Komerční banka a.s.

Question referred

Does Article 5(1) of Council Regulation (EC) No 1346/2000 (1) of 29 May 2000 on insolvency proceedings (‘the Regulation’) govern civil proceedings relating to the existence of rights in rem (security deposits) where the country in which the bond, and subsequently the money it represented, was deposited as a security was not a Member State of the European Union at the time when insolvency proceedings were instituted in another Member State, but was a Member State of the European Union by the time the application initiating the proceedings was submitted?

(1) OJ L 160, p. 1,
EN Official Journal of the European Union C 55/19

Action brought on 6 December 2010 — European Commission v Republic of Austria

(Case C-568/10)

2011/C 55/33

Language of the case: German

Parties

Applicant: European Commission (represented by: Maria Condou-Durande and W. Bogensberger, Agents)

Defendant: Republic of Austria

Form of order sought

— declare that, by introducing rules under which students who are third-country nationals may be granted a work permit only after the labour-market situation in Austria has been examined in order to ensure that the vacancy cannot be filled by someone registered as unemployed, the Republic of Austria has failed to fulfil its obligations under Article 17(1) of Council Directive 2004/114/EC of 13 December 2004 on the conditions of admission of third-country nationals for the purposes of studies, pupil exchange, unremunerated training or voluntary service; (1)

— order the Republic of Austria to pay the costs.

Pleas in law and main arguments

The Commission considers that the provisions of Austrian law systematically deny students who are third-country nationals access to the labour market, in that they are issued a work permit for a vacant position only if a check has been previously carried out as to whether the position cannot be filled by a person registered as unemployed. Consequently, according to the Commission, the number of work permits issued for this category of persons is very low. For that reason, only 10 % of students who are third-country nationals, in comparison with 70 % of Austrian students, have the possibility to finance part of the costs of their studies by means of employment.

In the view of the Republic of Austria, these restrictions are justified. It claims that, because of its free access to university and low university fees, Austria is particularly attractive for third-country nationals. Due to their inadequate knowledge of German and lack of professional qualifications, they generally find employment in unqualified areas and thereby increase yet further the currently high unemployment rate in this sector.

(1) OJ 2004 L 375, p. 12.
EN Official Journal of the European Union C 72/9

Appeal brought on 16 December 2010 by the Council of the European Union against the judgment of the General Court (Seventh Chamber) delivered on 30 September 2010 in Case T-85/09: Yassin Abdullah Kadi v European Commission

(Case C-593/10 P)

2011/C 72/16

Language of the case: English

Parties

Appellant: Council of the European Union (represented by: M. Bishop, E. Finnegan and R. Szostak, Agents)

Other parties to the proceedings: Yassin Abdullah Kadi, European Commission, French Republic, United Kingdom of Great Britain and Northern Ireland

Form of order sought

The appellant claims that the Court should:

— Set aside the judgment of the General Court in case T-85/09;

— Dismiss the respondent's application for the annulment of Commission Regulation 1190/2008 (1) in so far as it concerns him, as unfounded;

— Order the respondent to bear the costs of proceedings before the General Court and the Court of Justice.

Pleas in law and main arguments

By this Appeal the Council seeks to challenge several determinations of the General Court. The Council argues that:

— The General Court erred in law in considering that the Contested Regulation did not benefit from an immunity of jurisdiction;

In the alternative, the Council argues that:

— The General Court misconstrued and misapplied the case-law of the Court of Justice in considering that the review to be carried out should be ‘full and rigorous’ and in requiring the transmission of underlying evidence to the designated person or entity as well as to the Union judicature in order to ensure respect for that person or entity's rights of defence; and

— The General Court erred in law in failing to give due regard to the creation by United Nations Security Council Resolution 1904(2009) of the Office of the Ombudsperson.

(1) OJ L 322, p. 25
2.

What is the relationship between, on the one hand, the right to compensation based on Article 7 of Regulation (EC) No 261/2004 which a passenger has, according to the judgment of the Court of Justice of 19 November 2009 in Joined Cases C-402/07 and C-432/07 Sturgeon and Others [2009] ECR I-10923, if he reaches his final destination three hours or more after the scheduled arrival time and, on the other hand, the right to compensation in respect of delay provided for in Article 19 of the Montreal Convention, regard being had to the exclusion under the second sentence of Article 29 of the Montreal Convention?
EN Official Journal of the European Union C 72/8

Reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 9 December 2010 — Staatssecretaris van Financiën, other party: G. Frank

(Case C-580/10)

2011/C 72/13

Language of the case: Dutch

Referring court

Hoge Raad der Nederlanden

Parties to the main proceedings

Appellant: Staatssecretaris van Financiën

Other party: G. Frank

Question referred

In the light of Article 18 EC (now Article 21 TFEU), does Community law govern a situation in which a Member State levies a tax on the first use on the road network in its territory of a vehicle which is registered in another Member State, has been borrowed from a resident of that other Member State and has been driven for private purposes in the territory of the first Member State by a person who is a resident of that Member State but a national of the other Member State?
1.

Are Article 1(2) and Article 8(2) and (4) of Directive 91/439/EEC (1) — with particular regard to Article 2(1) and Article 3(1) of the Charter of Fundamental Rights of the European Union — to be interpreted as meaning that a Member State (the ‘host Member State’) is entitled not to recognise a Category B driving licence which another Member State (‘the issuing Member State’) has issued to a person on whom the host Member State has imposed prior measures within the meaning of Article 8(2) of Directive 91/439/EEC and which driving licence is on the face of the document itself in breach of the residence requirement of Article 7(1)(b) of Directive 91/439/EEC, if that person has subsequently obtained in the issuing Member State a Category C driving licence which is not on the face of that driving licence in breach of the residence requirement?
3.

In order for Article 22(4) of the Regulation to be applicable in proceedings such as those referred to in the preceding question, must the defence of invalidity be subject to procedural requirements in the sense that Article 22(4) of the Regulation is only applicable if invalidity proceedings before the court having jurisdiction under Article 22(4) of the Regulation are already pending or are to be commenced — within a period to be laid down by the court — or at least that a summons in that regard has been or is being issued to the patent holder, or does it suffice if a defence of invalidity is merely raised and, if so, are requirements then laid down in respect of the content of the defence put forward, in the sense that it must be sufficiently substantiated and/or that the conduct of the defence must not be deemed to be an abuse of procedural law?
2.

Does it make any difference to the Court's answer to Questions 2 and 4 of the reference in Case C-446/04 if: (a) foreign corporation tax is not (or not wholly) paid by the non-resident company paying the dividend to the resident company, but that dividend is paid from profits comprising dividends paid by its direct or indirect subsidiary resident in a Member State and which were paid out of profits on which tax has been paid in that State; and/or (b) advance corporation tax (‘ACT’) is not paid by the resident company which receives the dividend from a non-resident company, but is paid by its direct or indirect resident parent company upon the further distribution of the profits of the recipient company that directly or indirectly comprise the dividend?
2.

If the first question should be answered in the affirmative: Does the case where the Member State assuming responsibility has failed to satisfy in a serious manner and for an uncertain period of time one or several of the requirements laid down in Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum-seekers (OJ 2003 L 31, p. 18) and Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status (OJ 2005 L 326, p. 13) provide relevant grounds for a Member State to be required to assume responsibility as a result of the situation in the Member State required to assume responsibility with a view to protecting the fundamental rights in Article 3(1), Article 4, Article 18, Article 19(2) and Article 47 of the Charter of Fundamental Rights?
EN Official Journal of the European Union C 120/4

Reference for a preliminary ruling from the Finanzgericht Hamburg (Germany) lodged on 10 January 2011 — WEGO Landwirtschaftliche Schlachtstellen GmbH v Hauptzollamt Hamburg-Jonas

(Case C-10/11)

2011/C 120/06

Language of the case: German

Referring court

Finanzgericht Hamburg

Parties to the main proceedings

Applicant: WEGO Landwirtschaftliche Schlachtstellen GmbH

Defendant: Hauptzollamt Hamburg-Jonas

Question referred

Is the Hauptzollamt (Principal Customs Office) responsible for paying a refund bound by the subsequent amendment made by the customs office of export to the information entered in box 2 of the export declaration or in the T5 control copy? (1)

(1) Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p.1).