ddrg/super_eurlex huggingface dataset:
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Declare that, by failing to adopt the laws, regulations and administrative provisions necessary to implement Directive 2004/35/CE of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage (1), or by failing to notify the Commission thereof, the Republic of Austria has failed to fulfil its obligations under that directive.
EN Official Journal of the European Union C 327/7

Reference for a preliminary ruling from the Tribunale di Treviso (Italy) lodged on 18 August 2008 — Criminal proceedings against Luigi Pontini, Emanuele Rech, Dino Bonora, Giovanni Forato, Laura Forato, Adele Adami, Ivo Colomberotto

(Case C-375/08)

(2008/C 327/11)

Language of the case: Italian

Referring court

Tribunale di Treviso

Parties to the main proceedings

Luigi Pontini, Emanuele Rech, Dino Bonora, Giovanni Forato, Laura Forato, Adele Adami, Ivo Colomberotto

Question referred

The Tribunale makes a reference to the Court of Justice in order that the latter may make clear what the conditions are for eligibility for premiums for male bovine animals and, in particular, whether the requirement of use of forage areas is sufficient, irrespective of the existence of any valid legal title to make that use lawful (1).

(1) OJ L 160, p. 21.
1.

After the provisions contained in Articles 2 and 3 [of Directive 89/105/EC (1)] which modulate the relationship between the public authorities of a Member State and the pharmaceutical companies — by allowing the pricing of a medicinal product or the raising of its price to be determined on the basis of information provided by the [latter], but only in so far as is acceptable to the competent authority, and thus on the basis of dialogue between the undertakings themselves and the authorities competent to supervise pharmaceutical expenditure — Article 4(1) [of that Directive] concerning ‘price freeze[s] imposed on all medicinal products or on certain categories of medicinal products’ characterises a price freeze as a general instrument, the continuing use of which is conditional upon a review which must be carried out, at least once a year, with reference to the macro-economic conditions existing in the Member State in question. That provision allows the competent authorities a period of 90 days in which to take a final decision, requiring them, on expiry of that period, to announce what increases or decreases in prices are being made, if any. This Court asks: On a proper construction of the reference to‘ decreases in prices … being made, if any ’, is that provision to be interpreted as meaning that, as well as the general remedy of freezing the prices of all categories, or certain specific categories, of medicinal product, another general remedy may be applied in the form of a reduction in the prices of all categories, and of certain specific categories, of medicinal product?
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Declare that by not adopting all the laws, regulations and administrative provisions necessary to comply with Directive 2005/68/EC of the European Parliament and of the Council of 16 November 2005 on reinsurance and amending Council Directives 73/239/EEC and 92/49/EEC as well as Directives 98/78/EC and 2002/83/EC (1) or, in any event, by not communicating those measures to the Commission, the Kingdom of Belgium has failed to fulfil its obligations under that directive;
(2)

If that question is answered in the affirmative: (a) If the Member States are required, in order to set those maximum amounts, to comply with the provisions of Articles 28 EC and 30 EC, must they also be guided by the criteria laid down in Article 5 of Directive 2002/46/EC, including the requirement for a risk assessment based on generally accepted scientific data, in an area in which there is still relative uncertainty? (b) May a Member State set maximum levels when it is impossible, as in the case of fluoride, to calculate precisely the intake of vitamins and minerals from other dietary sources, mains water in particular, for each consumer group and on a territory-by-territory basis? May it in that case set a zero level where risks are known to exist, without resorting to the safety procedure provided for in Article 12 of Directive 2002/46/EC? (c) When setting maximum levels, if it is possible to take into account differences in the degrees of sensitivity of different consumer groups, as provided for in Article 5(1)(a) of Directive 2002/46/EC, can a Member State also take into account the fact that a measure addressed solely to sections of the population who are particularly exposed to risk, appropriate labelling for example, might dissuade that group from using a nutrient that would be beneficial to it in small amounts? Might taking into account that difference in sensitivity result in the application to the entire population of the maximum level appropriate for sensitive sections of the population, in particular children? (d) To what extent may maximum levels be set in the case where no safe limits have been laid down because there is no established danger to health? More generally, to what extent and in what circumstances might the weighting of criteria to be taken into account lead to the setting of maximum levels that are significantly lower than the safe limits accepted for those nutrients?
EN Official Journal of the European Union C 19/12

Reference for a preliminary ruling from the Oberverwaltungsgericht Berlin-Brandenburg (Germany) lodged on 27 October 2008 — Ümit Bekleyen v Land Berlin

(Case C-462/08)

(2009/C 19/20)

Language of the case: German

Referring court

Oberverwaltungsgericht Berlin-Brandenburg

Parties to the main proceedings

Applicant: Ümit Bekleyen

Defendant: Land Berlin

Question referred

Is the second paragraph of Article 7 of Decision No 1/80 of the EEC-Turkey Association Council on the development of the Association to be interpreted as meaning that the right of access to the labour market and the corresponding right of residence following the completion of a vocational training course in the host Member State can also be invoked in a situation in which the child who was born in the host Member State, but afterwards returned with her family to the family's country of origin, returns on her own to the relevant Member State after she has reached the age of majority in order to start a vocational training course, at a moment occurring 10 years after her parents, Turkish nationals who used to be employed in that Member State, had permanently left that Member State?
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Declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Council Directive 2005/94/EC of 20 December 2005 on Community measures for the control of avian influenza and repealing Directive 92/40/EEC (1), the Italian Republic has failed to fulfil its obligations under that directive.
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a declaration that the Kingdom of Spain, by failing to adopt all the laws, regulations and administrative provisions necessary to comply with Council Directive 2005/71/EC (1) on a specific procedure for admitting third-country nationals for the purposes of scientific research and, in any case, by failing to communicate such provisions to the Commission, has failed to fulfil its obligations under that Directive;
EN Official Journal of the European Union C 32/18

Action brought on 20 November 2008 — Commission of the European Communities v Republic of Malta

(Case C-508/08)

(2009/C 32/28)

Language of the case: Maltese

Parties

Applicant: Commission of the European Communities (represented by: J. Aquilina, K. Simonsson, acting as Agents)

Defendant: Republic of Malta

Form of order sought

— declare that, by signing an exclusive public service contract with ‘Gozo Channel Company Ltd’ (GCCL) on 16 April 2004, without having undertaken a prior call for tenders, the Republic of Malta has failed to fulfil its obligations, in particular under Articles 1 and 4 of Council Regulation (EEC) No 3577/92 of 7 December 1992 applying the principle of freedom to provide services to maritime transport within Member States (maritime cabotage) (1);

— order the Republic of Malta to pay the costs.

Pleas in law and main arguments

So as to be able to conclude a public service contract for the provision of cabotage services between Malta and Gozo, the Maltese authorities have to demonstrate that such a contract is necessary so as to impose those public service obligations that it deems necessary to ensure an appropriate service for the abovementioned route, and that the contract is adequate in the light of its aims.

While the Commission readily acknowledges that a satisfactory service is paramount for the Malta-Gozo route, it states on the other hand that the Maltese authorities have in no manner provided this proof; in this sense, they have not even sought to establish if one or more private operators were capable of providing this service on the same conditions on a purely commercial basis. In addition, they have not shown that the exclusivity given to GCCL is an appropriate and adequate means to achieve this end.

In addition, the fact that this contract was concluded without a prior open call for Community tenders, so as to ensure access on a non-discriminatory basis in respect of all Community shipowners, runs counter to the requirements of Regulation No 3577/92.

(1) OJ 1992 L 364, p. 7.
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Declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 (1) on the recognition of professional qualifications or, in any event, by failing to notify the Commission thereof, the Kingdom of Sweden has failed to fulfil its obligations under that directive;
2.

Is a person who otherwise satisfies the requirements to be a teacher giving tuition privately within the meaning of the provision referred to under 1 excluded from that category of persons if — he receives payment (in full or in part) for his teaching classes even if no participants have enrolled for the teaching class in question, but he has already done preparatory work for it, or — he is responsible, repeatedly and continuously over a considerable period of time, for organising the relevant teaching and examination work, or — in addition to his direct tuition work, he has taken on a professionally and/or organisationally prominent position compared with the other lecturers on the course in question?
EN Official Journal of the European Union C 44/37

Appeal brought on 19 December 2008 by the Commission of the European Communities against the judgment of the Court of First Instance (Seventh Chamber) delivered on 15 October 2008 in Case T-160/04 Potamianos v Commission

(Case C-561/08 P)

(2009/C 44/62)

Language of the case: French

Parties

Appellant: Commission of the European Communities (represented by: J. Currall and D. Martin, Agents)

Other party to the proceedings: Gerasimos Potamianos

Form of order sought

— Set aside the judgment of the Court of First Instance of 15 October 2008 in Case T-160/04;

— Declare Mr Potamianos's action inadmissible;

— Rule that each of the parties is to bear their own costs as regards both the appeal proceedings and the proceedings before the Court of First Instance of the European Communities.

Pleas in law and main arguments

By its appeal, the Commission is challenging the categorisation by the Court of First Instance of the notification sent to the respondent informing him of the non-renewal of his contract of employment as a temporary servant. The Court of First Instance interpreted that notification as a separate decision of the appointing authority. It is, however, clear from the case-law of the Court of Justice and, in particular, Case C-417/05 P Fernández Gómez, that such a notification has merely informative value, with only the terms of the contract stating that the contract will not be renewed upon expiry amounting to an act adversely affecting a party. As that contract was not challenged within the periods prescribed by the Staff Regulations, the Court of First Instance should have dismissed the action as inadmissible.

In disregarding that case-law, the Court of First Instance therefore created a situation of legal uncertainty for the Civil Service Tribunal and for the Commission and other institutions which have concluded contracts similar to that at issue in the present case.
EN Official Journal of the European Union C 69/21

Appeal brought on 18 December 2008 by SGL Carbon AG against the judgment of the Court of First Instance (Fifth Chamber) delivered on 8 October 2008 in Case T-68/04 SGL Carbon AG v Commission of the European Communities

(Case C-564/08 P)

(2009/C 69/38)

Language of the case: German

Parties

Appellant: SGL Carbon AG (represented by: M. Klusmann and K. Beckmann, Rechtsanwälte)

Other party to the proceedings: Commission of the European Communities

Form of order sought

— set aside the judgment of the Court of First Instance of the European Communities (Fifth Chamber) of 8 October 2008 in Case T-68/04 SGL Carbon AG v Commission;

— reduce, as appropriate, the amount of the fine imposed on the appellant in Article 2 of the contested Commission decision of 3 December 2003;

— in the alternative, refer the case back to the Court of First Instance for a fresh decision;

— order the respondent to pay the costs.

Grounds of appeal and main arguments

The subject-matter of this appeal is the judgment of the Court of First Instance, which dismissed the appellant's action against Commission Decision 2004/420/EC of 3 December 2003 relating to a cartel on the market for electrical and mechanical carbon and graphite products.

The appellant relies on two grounds in support of its appeal, alleging that the Court of First Instance infringed Community law and made a procedural error.

By its first ground of appeal the appellant submits that the Court of First Instance erred in law by failing to have regard to its submission at first instance that turnover which was internal to the group of affiliated companies had wrongly been included in the market volumes used to establish the amounts on which the fine was based. It also submits that the substantively excessive nature of the amount on which the fine established in respect of the appellant was based is an infringement of the principle of non-discrimination and the principle of proportionality as well as an infringement of Article 253 EC.

By its second ground of appeal, the appellant submits that the Court of First Instance made an error of assessment, and exceeded the scope of its discretion, in establishing the amount on which the appellant's fine was based. The Court of First Instance thus also infringed the principle of non-discrimination and the principle of proportionality. It is submitted that the Court of First Instance departed, without any legal basis, from its own case-law, to the detriment of the appellant, as regards the issue of the permissibility of a flat-rate for fines according to market share categories. Whereas the Court of First Instance had regarded market share categories or ‘portions’ with a margin of fluctuation of 5 % as appropriate in similar earlier judgments, it based its decision in the present case on market share categories of 10 %, to the significant detriment of the appellant as an undertaking which is grouped at the bottom end of its category.
EN Official Journal of the European Union C 267/24

Appeal brought on 3 July 2008 by Cofra srl against the order of the Court of First Instance (Fifth Chamber) made on 15 April 2008 in Case T-478/07 Cofra srl v Commission of the European Communities

(Case C-295/08 P)

2009/C 267/42

Language of the case: Italian

Parties

Appellant(s): Cofra srl (represented by A. Calabrese, avvocato)

Other party to the proceedings: Commission of the European Communities

By order of 29 June 2009 the Court of Justice (Eighth Chamber) dismissed the appeal.
1.

Does the application of a limitation rule providing for a time-limit of three years in which to bring proceedings in cases such as those which are the subject of the main proceedings in which on grounds of a domestic law situation incompatible with Community law, prior to the judgment of the Court of Justice of the European Communities in Köbler (Case C-224/01), migrant workers were refused special length-of-service increments constitute for the purposes of Article 39 EC and Article 7(1) of Regulation (EEC) No 1612/68 (1) indirect discrimination against migrant workers or a restriction on the right to freedom of movement for workers guaranteed by those provisions?
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declare that by not taking all necessary legal and administrative measures to comply with Council Directive 2004/113/EC of 13 December 2004 implementing the principle of equal treatment between men and women in the access to and supply of goods and services, or in any event by not communicating those measures to the Commission (1), the Czech Republic has failed to fulfil its obligations under Article 17 of that directive;
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declare that, by not adopting all the laws, regulations and administrative provisions necessary to comply with Commission Directive 2006/86/EC of 24 October 2006 implementing Directive 2004/23/EC of the European Parliament and of the Council as regards traceability requirements, notification of serious adverse reactions and events and certain technical requirements for the coding, processing, preservation, storage and distribution of human tissues and cells (1) or, in any case, by not communicating them to the Commission, the Kingdom of Belgium has failed to fulfil its obligations under that directive;
3.

In any event, are the means of defence afforded to that public official by the Italian legislation consistent with the principle of proportionality, in light of the fact that, under Article 38 of Decree No 131/1986 of the President of the Republic, it is irrelevant whether the resolution to increase share capital is null and void or may be annulled, and repayment of the duty paid may be effected only after a civil judgment declaring the transaction null and void or annulling it has become final?
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Declare that, by failing to adopt all the laws, regulations and administrative provisions necessary to comply with Directive 2002/91/EC of the European Parliament and of the Council of 16 December 2002 on the energy performance of buildings (1), or, in any event, by failing to notify them to the Commission, the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive;
EN Official Journal of the European Union C 90/11

Appeal brought on 30 January 2009 by Société des plantations de Mbanga SA (SPM) against the judgment of the Court of First Instance (Eighth Chamber) delivered on 13 November 2008 in Case T-128/05 SPM v Council and Commission

(Case C-39/09 P)

2009/C 90/16

Language of the case: French

Parties

Appellant: Société des plantations de Mbanga SA (SPM) (represented by: A. Farache, avocat)

Other parties to the proceedings: Council of the European Union, Commission of the European Communities

Form of order sought

The appellant claims the Court should:

— primarily: — partially set aside the judgment of the Court of First Instance; — order the Commission to pay damages and the costs of the case at first instance and on appeal, including those of the appellant;

— in the alternative: — refer the case back to the Court of First Instance for it to rule again and make a decision as to the amount of damages to be paid.

Pleas in law and main arguments

The appellant essentially puts forward two pleas in law in support of its appeal.

First, it submits that the Court of First Instance erred in law in holding that the Community system for the import of bananas does not manifestly and seriously infringe the principle of maintaining effective competition, a principle which, according to the appellant, is a rule of law intended to confer rights on individuals.

In this connection the appellant alleges, first, the failure by the Court of First Instance to take into account the objectives of competition in so far as it based its judgment solely on the general objectives pursued specifically in the context of the organisation of the common market in the banana sector. Secondly, the appellant claims that the Court of First Instance incorrectly interpreted the connection between the Community legislation and the anti-competitive practices existing on the banana market in so far as it refused to concede that the Community provisions enable, by means of import licences, the grant of economic advantages to certain privileged operators, whose position on the market is strengthened by the existing rules.

By its second plea, the appellant pleads the infringement, by the Court of First Instance, of general principles of law and, inter alia, of the principle of sound administration in so far as it held that that principle, in itself, is not a rule of law intended to confer rights on individuals. That principle has been affirmed many times in case-law and has the effect, in the present case, of putting the Commission under an obligation to take into consideration the particular circumstances of the market and of the producers who are not able to obtain the status of operators at the time of the adoption of the Community legislation.
EN Official Journal of the European Union C 90/12

Action brought on 30 January 2009 — Commission of the European Communities v Republic of Estonia

(Case C-46/09)

2009/C 90/18

Language of the case: Estonian

Parties

Applicant: Commission of the European Communities (represented by: E. Randvere and K. Simonsson)

Defendant: Republic of Estonia

Form of order sought

The applicant claims that the Court should:

— declare that, since it has not correctly transposed into national law the provisions of Directive 2000/59/EC (1) of the European Parliament and of the Council of 27 November 2000 on port reception facilities for ship-generated waste and cargo residues, the Republic of Estonia has failed to fulfil its obligations under Article 11 of Directive 2000/59/EC;

— order the Republic of Estonia to pay the costs.

Pleas in law and main arguments

It follows from Article 11(2)(a) of Directive 2000/59 that the Republic of Estonia is under an obligation to establish criteria in order to select ships, other than fishing vessels and recreational craft authorised to carry no more than 12 passengers, for inspection.

Article 11(2)(c) of Directive 2000/59 provides that, if the relevant authority is not satisfied with the results of this inspection, it must ensure that the ship does not leave the port until it has delivered its ship-generated waste and cargo residues to a port reception facility in accordance with Articles 7 and 10.

The Republic of Estonia has stated its intention to supplement the Estonian legislation in order to correctly transpose those provisions of the directive. The Commission does not have any information on the adoption of such amendments.

(1) OJ 2000 L 332, p. 81
2.

Is it contrary to the principle of freedom of movement within the European Union and to the second paragraph of Article 24 of 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts to grant a Belgian contracting authority the power to require foreign tenderers to submit to a Belgian authority — the committee for the registration of contractors — for assessment of the validity of the certificates which have been issued to them by the tax and social security authorities of their State, attesting that they have fulfilled the obligations imposed on them relating to tax and social security?