ddrg/super_eurlex huggingface dataset:
Order of the Court (Fifth Chamber) of 23 October 2009 — Commission v Potamianos and Potamianos v Commission

(Joined Cases C-561/08 P and C-4/09 P)

‛Appeal — Civil Service — Temporary agent — Non-renewal of a fixed-term contract — Act having adverse effect’

1. Officials — Actions — Acts adversely affecting an official — Communication informing a temporary agent that his contract was not to be extended — Decision distinct from the contract — Included (Staff Regulations of Officials, Art. 90(1)) (see paras 43-46)

2. Appeals — Grounds — Mere repetition of the pleas and arguments put forward before the Court of First Instance — Error of law relied on not identified — Inadmissibility (Art. 225(1) EC; Statute of the Court of Justice, Art. 58, first para.; Rules of Procedure of the Court of Justice, Art. 112(1)(c)) (see paras 57-59, 61)

Re:

Appeal against the judgment of the Court of First Instance of the European Communities (Seventh Chamber) of 15 October 2008 in Case T-160/04 Potamianos v Commission in which the Court found admissible but unfounded the action brought by Mr Potamianos against the decision of the authority empowered to conclude contracts of employment not to renew his contract as a member of the temporary staff beyond its date of expiry — Concept of an act adversely affecting the official — Incorrect assessment of the basis of the decision not to renew — Interest of the service or the rule against overlapping — Misuse of powers — Principle of equal treatment.

Operative part

The Court:

1. Dismisses the appeals;
Operative part



Operative part

On those grounds, the Court (Sixth Chamber) hereby orders:

1. The appeal is dismissed.

2. Apple Computer Inc. shall pay the costs.
Keywords

Subject of the case

Operative part



Keywords

Preliminary rulings

–

Admissibility

–

Questions referred without sufficient information on the factual and legislative context (Art. 234 EC; Statute of the Court of Justice, Art. 23) (see paras 14-16

)

Subject of the case

Re:

Reference for a preliminary ruling – Tribunal Judicial da Comarca do Porto – Interpretation of Articles 43, 49 and 56 EC – National legislation reserving to a particular body the exclusive right to operate games of chance and pool betting and penalising the activity of organising, promoting and collecting (including by internet) of bets on sporting events – Prohibition on an undertaking based in another Member State operating online gambling and pool betting from promoting organising and operating such gambling and pool betting by internet and making the value of the prizes available to winners.

Operative part

Operative part:

The reference for a preliminary ruling made by the Tribunal Judicial da Comarca do Porto (Portugal), by decision of 19 December 2007, is manifestly inadmissible.
Keywords

Summary



Keywords

Preliminary rulings – Reference to the Court – Court or tribunal of a Member State within the meaning of Article 234 EC – Meaning

(Art. 234 EC)

Summary

For the referring court to be able to make a reference to the Court under Article 234 EC, there must be a case pending before it and it must be called upon to give judgment in proceedings intended to lead to a decision of a judicial nature.

The Amtsgericht Charlottenburg (Germany) cannot, therefore, refer a question to the Court when it makes an administrative decision without being required at the same time to decide a legal dispute, so that it acts in a non-judicial capacity. That is the case where its essential task is the appointment of a ‘supplementary’ liquidator for the remaining assets of a company struck off the register and no case is pending before it between the applicant and any defendant, the Amtsgericht Charlottenburg being the first authority to have before it the application for the appointment of a liquidator for that company.

(see paras 17-21)
Order of the Court (Eighth Chamber) of 22 May 2008 – Ilhan v Staatssecretaris van Financiën

(Case C-42/08)

First subparagraph of Article 104(3) of the Rules of Procedure – Freedom to provide services – Articles 49 EC to 55 EC – Motor vehicles – Use in one Member State of a motor vehicle registered and leased in another Member State – Taxation of that vehicle in the first Member State

Freedom to provide services – Restrictions (Arts 49 EC to 55 EC) (see para. 25, operative part)

Re:

Reference for a preliminary ruling – Hoge Raad der Nederlanden Den Haag – Interpretation of Articles 49 EC to 55 EC – National legislation providing for the imposition of a registration tax on first use of a vehicle on the national road network irrespective of the period of use of that network – Liability to tax of a person established in that Member State who has leased a vehicle registered in another Member State and intended for use essentially in the first Member State for business and private purposes for a period of three years.

Operative part

Articles 49 EC to 55 EC preclude the application of national rules, such as those at issue in the main proceedings, by virtue of which a person, residing or established in a Member State, who uses – primarily in that Member State – a motor vehicle registered and leased in another Member State, must, on first use of that vehicle on the road network of the first Member State, pay a tax which is calculated without taking into account the duration of the leasing agreement for that vehicle or the length of time that vehicle will be used on that road network.
Keywords

Subject of the case

Operative part



Keywords

Procedure

–

Costs

–

Taxation

–

Recoverable costs

–

Elements to be taken into consideration (Rules of Procedure of the Court of Justice, Art. 73(b)) (see para. 14

)

Subject of the case

Re:

Application for taxation of costs following the order of the Court (Fifth Chamber) of 1 June 2009.

Operative part

Operative part:

The total costs to be reimbursed by Leche Celta SL to Celia SA are fixed at EUR 6 709.43.
Order of the Court (Fifth Chamber) of 20 January 2009 – Sebirán v OHIM

(Case C‑210/08 P)

Appeal – Community trade mark – Regulation (EC) No 40/94 – Article 8(1)(b) – Likelihood of confusion – Figurative mark Coto D’Arcis – Opposition by the proprietor of word marks COTO DE IMAZ and EL COTO – Partial refusal to register

Appeals – Grounds – Mistaken assessment of the facts – Inadmissibility – Review by the Court of Justice of the assessment of the facts put before the Court of First Instance – Possible only where the clear sense of the evidence has been distorted (Art. 225(1) EC; Statute of the Court of Justice, Art. 58, first para.) (see para. 31)

Re:

Appeal against the judgment of the Court of First Instance (Fourth Chamber) of 12 March 2008 in Case T‑332/04 Sebirán v OHIM and El Coto de Rioja , by which that Court dismissed the action brought by Sebirán for the annulment of the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 15 June 2004 (Case R 550/2003-2).

Operative part

The Court:

1. Dismisses the appeal;
Order of the Court (Third Chamber) of 27 November 2008 – Renta v TEARC

(Case C‑151/08)

Article 104(3) of the Rules of Procedure – Sixth VAT Directive – Article 33(1) – Meaning of ‘turnover taxes’ – Duty on transfers of assets and documented legal transactions

Tax provisions – Harmonisation of laws – Turnover taxes – Common system of value added tax – Prohibition on the levying of other domestic taxes which can be characterised as turnover taxes (Council Directive 77/388, Art. 33(1)) (see paras 36-38, 43, 46, operative part)

Re:

Reference for a preliminary ruling – Tribunal Superior de Justicia de Cataluña – Interpretation of Article 33 of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes – Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1) – Definition of ‘turnover tax’ – Domestic duty on transfers of assets and documented legal transactions.

Operative part

Article 33(1) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes – Common system of value added tax: uniform basis of assessment, as amended by Council Directive 91/680/EEC of 16 December 1991, must be interpreted as meaning that it does not preclude the charging of the variable or proportional amount of the duty on transfers of assets and documented legal transactions when it is chargeable on the conclusion of a purchase by an undertaking whose business activity consists of buying and selling immovable property or purchasing immovable property for development or letting.
Order of the Court (Seventh Chamber) of 17 March 2009 – Mariano v Istituto nazionale per l’assicurazione contro gli infortuni sul lavoro

(Case C‑217/08)

Article 104(3) of the Rules of Procedure – Equal treatment in employment matters – Articles 12 EC and 13 EC – Grant of survivor’s benefit – National rules providing for differences in treatment between surviving spouses and surviving cohabitees

1. European Union citizenship – Treaty provisions – Equal treatment – Discrimination on grounds of nationality – Not allowed – Substantive scope – Exclusion of purely internal situations (Arts 12 EC and 17 EC) (see paras 17-22)

2. Community law – Principles – Equal treatment – Discrimination on grounds of age – Not allowed – Scope – Discriminatory treatment having no link with Community law – Excluded (Art. 13 EC; Council Directive 2000/78) (see paras 24-27)

3. Community law – Principles – Equal treatment – Scope – National rules providing for differences in treatment between surviving spouses and surviving partners in awarding survivor’s benefit – Discriminatory treatment having no link with Community law – Excluded (Arts 12 EC and 13 EC; Council Directive 2000/78) (see paras 30-31)

Re:

Reference for a preliminary ruling – Tribunale Ordinario di Milano (Italy) – Interpretation of Articles 12 EC and 13 EC – Equal treatment in employment matters – Grant of survivor’s benefit – National rules providing for differences in treatment between surviving spouses and surviving partners who were in a life partnership.

Operative part

Community law does not impose a prohibition of all discrimination, the application of which the courts of Member States must ensure, where the allegedly discriminatory treatment has no link with Community law. In circumstances such as those at issue in the main proceedings, no such link arises from Articles 12 EC and 13 EC in themselves.

Those articles do not preclude, in those circumstances, national rules under which, in the event of the death of a person as a result of an accident, a pension amounting to 50% of the remuneration received by that person before his death is paid solely to his surviving spouse and the infant child of the deceased receives only a pension amounting to 20% of that remuneration.
ORDER OF THE COURT (Fifth Chamber)

23 October 2009

Joined Cases C-561/08 P and C-4/09 P

Commission of the European Communities

v

Gerasimos Potamianos

and

Gerasimos Potamianos

v

Commission of the European Communities

(Appeal – Civil service – Temporary staff – Non‑renewal of a fixed-term contract – Act having adverse effect)

Appeal: lodged by the Commission of the European Communities against the judgment of the General Court of the European Communities of 15 October 2008 in Case T-160/04 Potamianos v Commission [2008] ECR-SC I-A-2-0000 and II-A-2-0000, by which the Court rejected the plea of inadmissibility raised by the Commission on the basis that the action brought by Mr Potamianos was out of time. Appeal lodged by Mr Potamianos against the abovementioned judgment by which the Court dismissed his application for annulment of the decision of the authority authorised to conclude contracts of employment not to renew his contract as a member of the temporary staff.

Held: The appeals are dismissed. Each party is to bear its own costs.

Summary

1. Officials – Actions – Act having adverse effect – Letter informing a member of the temporary staff that his contract will not be renewed – Decision separate from the contract – Included

(Staff Regulations, Art. 90(1))

2. Appeals – Pleas in law – Mere repetition of the pleas and arguments put forward before the General Court – Error of law relied on not identified – Inadmissibility

(Art. 225(1) EC; Statute of the CourtofJustice, Art. 58, first para.; Rules of Procedure of the Court, Art. 112(1)(c))
Order of the Court (Seventh Chamber) of 9 July 2009 – Régie communale autonome du stade Luc Varenne v Belgian State

(Case C‑483/08)

First subparagraph of Article 104(3) of the Rules of Procedure – Sixth VAT Directive – Article 10(1) and (2) – Recovery of tax improperly deducted – Starting point of the limitation period

Tax provisions – Harmonisation of laws – Turnover taxes – Common system of value added tax – Recovery of tax – Limitation period (Council Directive 77/388, Art. 10) (see paras 38-42, operative part.)

Re:

Reference for a preliminary ruling – Tribunal de Première Instance de Mons (Belgium) – Interpretation of Article 10 of the Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes – Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1) – Concepts of ‘chargeable event’ and ‘chargeability of tax’ – Starting point of limitation period for an action for recovery of the tax – Date when invoice is issued or date when the tax return in which the taxable person claims his right to deduct tax is lodged?

Operative part

Article 10 of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes – Common system of value added tax: uniform basis of assessment, as amended by Council Directive 2002/38/EC of 7 May 2002, must be interpreted as meaning that it does not preclude national legislation and administrative practice fixing the starting point of the limitation period for an action for recovery of improperly deducted value added tax as the day on which the taxable person lodged the VAT return in which he claimed for the first time a right to deduct.
Reference for a preliminary ruling – Landessozialgericht Berlin-Brandenburg – Interpretation of Articles 18 EC, 49 EC and 50 EC and Article 34(4) and (5) of Council Regulation (EEC) No 574/72 of 21 March 1972 laying down the procedure for implementing Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons and to their families moving within the Community (OJ, English Special Edition 1972(I), p. 159) – Reimbursement of medical costs incurred in connection with emergency treatment of a national of a Member State in a private hospital of another Member State as a result of the refusal of the competent public hospital to provide that benefit on the ground of insufficient capacity – National legislation of the competent Member State excluding reimbursement of medical costs incurred for emergency treatment in a private hospital of another Member State but allowing reimbursement of those costs if charged by a private hospital situated in national territory.
Order of the Court (Sixth Chamber) of 4 December 2009 – Rath v OHIM

(Joined Cases C‑488/08 P and C-489/08 P)

Appeals – Community trade mark – Regulation (EC) No 40/94 – Article 8(1)(b) – Word marks Epican and Epican Forte – Opposition by the proprietor of the Community word mark EPIGRAN – Likelihood of confusion – Partial rejection of the application for registration – Appeals manifestly inadmissible

1. Appeals – Grounds – Incorrect assessment of the facts and evidence – Inadmissibility – Review by the Court of the assessment of the facts and evidence – Possible only where the clear sense of the evidence has been distorted (Art. 225(1) EC; Statute of the Court of Justice, Art. 58, first para.) (see paras 37-38)

2. Appeals – Grounds – Mere repetition of the pleas and arguments put forward before the Court of First Instance – Inadmissibility – Rejection (Art. 225 EC; Statute of the Court of Justice, Art. 58, first para.; Rules of Procedure of the Court of Justice, Art. 112(1)(c)) (see para. 44)

Re:

Appeals brought against the orders of the Court of First Instance (Seventh Chamber) of 8 September 2008 in Case T‑373/06 Rath v OHIM and Grandel and Case T‑374/06 Rath v OHIM and Grandel by which that court dismissed as manifestly lacking any foundation in law the actions for annulment of the decisions of the First Board of Appeal of OHIM of 5 October 2006 dismissing in part the actions brought against the decisions of the Opposition Division which, by upholding the opposition of the proprietor of the earlier Community word mark ‘EPIGRAN’, refused to register the word marks ‘EPICAN’ and ‘EPICAN FORTE’ for goods and services in class 5 – Likelihood of confusion of the two marks.

Operative part:

The Court:

1. Dismisses the appeals;
Operative part



Operative part

On those grounds, the Court (First Chamber) hereby orders:

1. The appeal is dismissed.

2. Mr Karatzoglou shall pay the costs.
Keywords

Subject of the case

Operative part



Keywords

Appeals

–

Grounds

–

Mistaken assessment of the facts

–

Inadmissibility

–

Review by the Court of Justice of the assessment of the evidence

–

Possible only where the clear sense of the evidence has been distorted (Art. 225(1) EC; Statute of the Court of Justice, Art. 58, first para.) (see point 21

)

Subject of the case

Re:

Appeal against the judgment of the Court of First Instance (Seventh Chamber) of 10 December 2008 in Case T-365/06 Bateaux mouches v OHIM by which the Court dismissed the action brought by the applicant against the decision of the First Board of Appeal of OHIM of 7 September 2006, concerning proceedings for invalidity of the Community word mark ‘BATEAUX MOUCHES’ – Infringement of Article 7(1)(b) and (3) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1) – Misinterpretation of the criteria laid down by the case-law of the Court of Justice – Absence of any distinctive character.

Operative part

Operative part:

1. The appeal is dismissed.

2. The Compagnie des bateaux mouches SA is ordered to pay the costs.
Keywords

Subject of the case

Operative part



Keywords

Appeals

–

Grounds

–

Mere repetition of the pleas and arguments put forward before the Court of First Instance

–

Error of law relied on not identified

–

Inadmissibility (Art. 256 TFEU; Statute of the Court of Justice, Art. 58(1); Rules of Procedure of the Court of Justice, Art. 112(1)(c)) (see paras 11-13

)

Subject of the case

Re:

Appeal brought against the judgment of the Court of First Instance (Seventh Chamber) of 16 November 2009 in Case T‑354/09 Goldman Management v Commission and Bulgaria , by which that court dismissed the action seeking, first, a declaration that the Commission had unlawfully failed to bring infringement proceedings against Bulgaria and that that Member State had itself unlawfully failed to act in response to requests made by the appellant in a purely internal dispute and, secondly, compensation for the damage it had allegedly sustained as a result of that twofold failure to act.

Operative part

Operative part:

The Court:

1. Dismisses the appeal;

2. Orders Goldman Management Inc. to bear its own costs.
Keywords

Subject of the case

Operative part



Keywords

Agriculture – Common organisation of the markets – Bananas – System of importation – Tariff quota – Allocation and distribution (Council Regulation No 404/93, Art. 19) (see paras 38-40)

2. Agriculture – Common agricultural policy – Paramountcy in relation to objectives of the Treaty in the sphere of competition (Art. 36 EC; Council Regulation No 404/93) (see paras 47-48)

3. Agriculture – Common organisation of the markets – Bananas – System of importation – Amendment of the legislation on allocation of tariff quotas –Measures intended to ensure the viability of independent ACP producers – None (Council Regulations No 404/93, as amended by No 1637/98, and No 856/1999; Commission Regulations No 2362/98 and No 896/2001) (see paras 68-74)

4. Non-contractual liability – Conditions – Unlawfulness – Provision without direct effect (Art. 288, second para., EC) (see paras 78-79)

Subject of the case

Re:

Appeal brought against the judgment of the Court of First Instance (Eighth Chamber) of 13 November 2008 in Case T-128/05 SPM v Council and Commission , by which the Court dismissed the appellant’s action seeking damages for the loss which it suffered as a result of the allegedly illegal rules adopted by the Council and the Commission on the import of bananas into the Community – Non-contractual liability of the Community – Bananas originating in ACP countries – Loss allegedly suffered by an independent producer – Failure to comply with the rules on competition in the field of the common agricultural policy – Infringement of general principles of law and, in particular, of the principle of sound administration.

Operative part

Operative part:

1. The appeal is dismissed.

2. Société des plantations de Mbanga SA (SPM) is ordered to pay the costs.
Keywords

Subject of the case

Operative part



Keywords

Appeals – Grounds – Distortion of the clear sense of the evidence – None – Plea manifestly unfounded (Art. 256 TFEU; Statute of the Court of Justice, Art. 58) (see paras 21-28)

2. Appeals – Grounds – Plea submitted for the first time in the context of the appeal – Manifest inadmissibility (Art. 256 TFEU; Statute of the Court of Justice, Art. 58; Rules of Procedure of the Court of Justice, Art. 113(2)) (see paras 33-35)

3. Appeals – Grounds – Mistaken assessment of the facts – Manifest inadmissibility (Art. 256 TFEU; Act of Accession 2003, Annex IV, para. 4(2); Statute of the Court of Justice, Art. 58; Commission Regulations No 60/2004 and No 832/2005) (see paras 44-49, 80-85, 92-95)

4. Appeals – Grounds – Breach of a rule of law – Plea manifestly unfounded (Art. 256 TFEU; Act of Accession 2003, Annex IV, para. 4(2); Statute of the Court of Justice, Art. 58; Commission Regulations No 60/2004 and No 832/2005) (see paras 53-57)

5. Appeals – Grounds – Breach of a rule of law – Plea manifestly unfounded (Art. 256 TFEU; Statute of the Court of Justice, Art. 58; Commission Regulation No 60/2004, Art. 6(1)(2)(c)) (see paras 61-63)

6. Appeals – Grounds – Distortion of the clear sense of the evidence – None – Manifest inadmissibility (Art. 256 TFEU; Statute of the Court of Justice, Art. 58) (see paras 67-69)

7. Appeals – Grounds – Breach of principle of the protection of legitimate expectations – Discretion of the institutions – Legislation adapted to changes in the economic situation – Not possible to claim protection of legitimate expectations – Plea manifestly unfounded (see paras 72-74)

8. Appeals – Grounds – Breach of the principle of legal certainty – Plea submitted for the first time in the context of the appeal – Manifest inadmissibility (Art. 256 TFEU; Statute of the Court of Justice, Art. 58; Rules of Procedure of the Court of Justice, Art. 113(2)) (see paras 75-76)

9. Appeals – Grounds – No breach of the principle audi alteram partem – (see paras 88-89)

Subject of the case

Re:

Appeal against the judgment of 2 October 2009 in Case T‑324/05 Estonia v Commission dismissing the appellant’s action for annulment of Commission Regulation (EC) No 832/2005 of 31 May 2005 on the determination of surplus quantities of sugar, isoglucose and fructose for the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia (OJ 2005 L 138, p. 3).

Operative part

Operative part

1. The appeal is dismissed.

2. The Republic of Estonia is ordered to bear its own costs and to pay the costs incurred by the European Commission.

3. The Republic of Latvia is ordered to bear its own costs.